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Can I appeal an order if the lawyer didn't object?

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databit

Member
What is the name of your state (only U.S. law)? Arkansas
Who am I? Stepparent aka person with no say or rights in the case, I am not an attorney or in any way associated with the legal field. I've done a bit of reading and wondering if we should even approach this with the attorney.

Feb 2013
Plaintiff was made custodial parent
Defendant non-custodial and granted standard visitation with additional overnight every Wednesday and every Friday
Wording regarding pickup/drop off:
"the Defendant will pick up the minor children at the beginning of visitation at the Plaintiff's house, the Plaintiff will pick up the minor children at the end of visitation at the Defendant's house"
"All other visitation regarding holidays, birthdays, etc., will be followed as per the Court's Standard Order Regarding Visitation and Related Matters."

Attached Standard Order:
"Additional Visitation: The Court encourages and approves the parties agreeing to as much additional visitation as they desire. It also encourages and approves the parties agreeing to flexibility with the visitation specified in the Order. However, in the absence of agreement, the terms of this Order are to be strictly observed."
Transportation: The non-custodial parent shall be responsible for transportation at the beginning of the visitation. Pick-up and return times should be strictly observed. In the rare instance when the times cannot be observed, the other party must be given as much advance notice as possible. Transportation shall be provided by a responsible adult.

Sep 2013:
Custodial parent filed for relocation out of state
Non custodial parent responded denying custodial parents reason for relocation and countered with change of custody on the grounds of custodial interference of visitation.
Interference based on Non custodial parent changed jobs to a job with a schedule that conflicted with visitation and was unable to be at the custodial parents house for pickup. Non-custodial parent wanted his mother to pickup the kids but the custodial parent was against this due to her belief that it was not in the best interest of the children to be with a 3rd party until midnight on school nights. On the non-custodial parents weekend the custodial parent arranged to have him pick up the kids the following morning. His schedule was approx 3pm to midnight and his pickup time for the children is 5pm.
Reason 2 for interference. Since the Feb2013 order one of the kids did not like staying on school nights or on the extra Friday. When she didn't want to go she would ask her dad and he would say it was ok not to attend.

Court: April 2014
Testimony was given by the custodial parent that she did not agree/did not let the non-custodial parent designate a 3rd party to pick them up for regular visitation, that she allowed alternate pickup time, that she offered extra time to make up for missed time and that she tells the child not wanting to go that she should, has her pack and that the non custodial tells her she doesn't have to attend. Evidence was provided in interrogatories responses but I don't think it was introduced.
Evidence was provided of a text exchange between non-custodial and child showing this permission. Also, stated she was going by the court order which stated non-custodial parent was to pick the kids up and the Judge said he has never ordered that. (original order was signed by this judge)
Testimony was given by the non-custodial parent that custodial didn't allow a 3rd party to pick the kids up when it conflicted with his schedule and that he wanted the child that didn't attend (1 out of 4) to attend and feels the custodial parent should have forced her to attend.
Judgment: Petition for relocation denied, court felt that custodial parent showed significant cause for the relocation but the non-custodial parent met the burden of proof required to prevent relocation based on interference of visitation. The court feels if relocation was granted then there is a significant chance of further interference and that would not be in the best interest of the kids.
Custodial parent's lawyer stated that she would be willing to include a financial penalty for each day that one of the kids missed visitation in order to insure she would follow the order. Judges order stands and relocation denied.
Custodial parent's Lawyer did not object


The reason I see for appeal is that the judge blocked the relocation due to the burden of proof being met that there was custodial interference due to the custodial parent not letting a 3rd party pick up the kids and stated that he did not order that (it's in the order that I posted above)
So questions:
1. Is this enough to appeal, should we even bother or will it stand as is
2. From what I've read, appealing requires that the lawyer object and he didn't (not that I recall) does that mean we can't appeal?
Thanks!


Also to note, for anyone thinking the custodial parent doesn't want the non custodial to see the kids. That is not true, the proposed visitation plan is very generous by giving almost the entire summer, doing a 2 to 1 ratio on Fall, Winter and Spring breaks where non custodial would have the kids 2 out of the 3 each year and said that he has the options of having the kids every other weekend and on any time the kids are out of school for a friday or monday he can have the kids all 3 days plus he gets 4 weeks/year in which if he comes to visit the kids he can take them for the whole week as long as he ensures attend school. We know that it would not be feasible to execute every time but it gives him the option if he wants to travel there or if he wants to see the kids he can fly them out for the weekend occasionally. Really tried to be generous with the visitation because the kids want to see their dad and he isn't a bad dad.
 


databit

Member
Also to note, the reason we are wondering is I have to give my potential employer an answer on if I will take the gig or not. It is almost double what I make now and we are open to me travelling for the position for a bit if we are fairly confident of relocating.
 

anearthw

Member
We know that it would not be feasible to execute every time but it gives him the option if he wants to travel there or if he wants to see the kids he can fly them out for the weekend occasionally. Really tried to be generous with the visitation because the kids want to see their dad and he isn't a bad dad.
I wouldn't be happy with that either. You (or your spouse - wife?) are saying that it is being generous to allow him to fly them out on occasion or travel there? Is that supposed to come out of HIS pocket? I'm sure most parents would prefer their children just stay put. It seems that your spouse did not convince a judge that this move was in the best interest of the child and that's that. Unfortunately, when we have children and then divorce, that can be a bit of an anchor for the time being and that is what appears to have happened.

I don't see grounds for an appeal, it seems to be a standard relocation denial. Arkansas is one of those states where you generally need a darn good reason for the children to relocate. There is, of course, always the option of switching custody and spouse/?wife? relocating.
 

Proserpina

Senior Member
What is the name of your state (only U.S. law)? Arkansas
Who am I? Stepparent aka person with no say or rights in the case, I am not an attorney or in any way associated with the legal field. I've done a bit of reading and wondering if we should even approach this with the attorney.

Feb 2013
Plaintiff was made custodial parent
Defendant non-custodial and granted standard visitation with additional overnight every Wednesday and every Friday
Wording regarding pickup/drop off:
"the Defendant will pick up the minor children at the beginning of visitation at the Plaintiff's house, the Plaintiff will pick up the minor children at the end of visitation at the Defendant's house"
"All other visitation regarding holidays, birthdays, etc., will be followed as per the Court's Standard Order Regarding Visitation and Related Matters."

Attached Standard Order:
"Additional Visitation: The Court encourages and approves the parties agreeing to as much additional visitation as they desire. It also encourages and approves the parties agreeing to flexibility with the visitation specified in the Order. However, in the absence of agreement, the terms of this Order are to be strictly observed."
Transportation: The non-custodial parent shall be responsible for transportation at the beginning of the visitation. Pick-up and return times should be strictly observed. In the rare instance when the times cannot be observed, the other party must be given as much advance notice as possible. Transportation shall be provided by a responsible adult.

Sep 2013:
Custodial parent filed for relocation out of state
Non custodial parent responded denying custodial parents reason for relocation and countered with change of custody on the grounds of custodial interference of visitation.
Interference based on Non custodial parent changed jobs to a job with a schedule that conflicted with visitation and was unable to be at the custodial parents house for pickup. Non-custodial parent wanted his mother to pickup the kids but the custodial parent was against this due to her belief that it was not in the best interest of the children to be with a 3rd party until midnight on school nights. On the non-custodial parents weekend the custodial parent arranged to have him pick up the kids the following morning. His schedule was approx 3pm to midnight and his pickup time for the children is 5pm.
Reason 2 for interference. Since the Feb2013 order one of the kids did not like staying on school nights or on the extra Friday. When she didn't want to go she would ask her dad and he would say it was ok not to attend.

Court: April 2014
Testimony was given by the custodial parent that she did not agree/did not let the non-custodial parent designate a 3rd party to pick them up for regular visitation, that she allowed alternate pickup time, that she offered extra time to make up for missed time and that she tells the child not wanting to go that she should, has her pack and that the non custodial tells her she doesn't have to attend. Evidence was provided in interrogatories responses but I don't think it was introduced.
Evidence was provided of a text exchange between non-custodial and child showing this permission. Also, stated she was going by the court order which stated non-custodial parent was to pick the kids up and the Judge said he has never ordered that. (original order was signed by this judge)
Testimony was given by the non-custodial parent that custodial didn't allow a 3rd party to pick the kids up when it conflicted with his schedule and that he wanted the child that didn't attend (1 out of 4) to attend and feels the custodial parent should have forced her to attend.
Judgment: Petition for relocation denied, court felt that custodial parent showed significant cause for the relocation but the non-custodial parent met the burden of proof required to prevent relocation based on interference of visitation. The court feels if relocation was granted then there is a significant chance of further interference and that would not be in the best interest of the kids.
Custodial parent's lawyer stated that she would be willing to include a financial penalty for each day that one of the kids missed visitation in order to insure she would follow the order. Judges order stands and relocation denied.
Custodial parent's Lawyer did not object


The reason I see for appeal is that the judge blocked the relocation due to the burden of proof being met that there was custodial interference due to the custodial parent not letting a 3rd party pick up the kids and stated that he did not order that (it's in the order that I posted above)
So questions:
1. Is this enough to appeal, should we even bother or will it stand as is
2. From what I've read, appealing requires that the lawyer object and he didn't (not that I recall) does that mean we can't appeal?
Thanks!


Also to note, for anyone thinking the custodial parent doesn't want the non custodial to see the kids. That is not true, the proposed visitation plan is very generous by giving almost the entire summer, doing a 2 to 1 ratio on Fall, Winter and Spring breaks where non custodial would have the kids 2 out of the 3 each year and said that he has the options of having the kids every other weekend and on any time the kids are out of school for a friday or monday he can have the kids all 3 days plus he gets 4 weeks/year in which if he comes to visit the kids he can take them for the whole week as long as he ensures attend school. We know that it would not be feasible to execute every time but it gives him the option if he wants to travel there or if he wants to see the kids he can fly them out for the weekend occasionally. Really tried to be generous with the visitation because the kids want to see their dad and he isn't a bad dad.


An appeal must generally include an error of law - not getting the result you wanted, is not an error of law.

Both parents need to understand that the court has enormous discretion.

Mom is plaintiff, yes? And you're Step-Dad?
 

Proserpina

Senior Member
I wouldn't be happy with that either. You (or your spouse - wife?) are saying that it is being generous to allow him to fly them out on occasion or travel there? Is that supposed to come out of HIS pocket? I'm sure most parents would prefer their children just stay put. It seems that your spouse did not convince a judge that this move was in the best interest of the child and that's that. Unfortunately, when we have children and then divorce, that can be a bit of an anchor for the time being and that is what appears to have happened.

I don't see grounds for an appeal, it seems to be a standard relocation denial. Arkansas is one of those states where you generally need a darn good reason for the children to relocate. There is, of course, always the option of switching custody and spouse/?wife? relocating.

Arkansas has changed things a little. The presumption now is in favor of the relocation; if the NCP objects it's up to him/her to block it.

Arkansas:
There is a presumption in favor of relocation for custodial parents with primary custody of children, with the burden being with the noncustodial parent to rebut the relocation presumption, and thus the custodial parent no longer has the responsibility to prove a real advantage to herself or himself and to the children in relocating. Blivin v. Weber, 354 Ark. 483, 126 S.W.3d 351 (2003)
 

anearthw

Member
Arkansas has changed things a little. The presumption now is in favor of the relocation; if the NCP objects it's up to him/her to block it.
Thanks for the update. It seems the judge thought dad had good enough reason. I wonder if mom was expecting dad to foot these travel bills too.
 

Proserpina

Senior Member
Simply from what OP has said here, I can absolutely see how not allowing Dad to designate a third party to pick up was held against Mom.
 

anearthw

Member
Simply from what OP has said here, I can absolutely see how not allowing Dad to designate a third party to pick up was held against Mom.
I don't see why mom would have done this and then expected the family to up and move far from dad based on her husbands job. That certainly appears to be the actions of someone looking to interfere with dads rights.
 

Silverplum

Senior Member
Good Judge.

CP filed to relocate within 7 months of gaining her Exalted Status: I doubt that impressed Judge Good, either. :cool:
 

Ohiogal

Queen Bee
And to answer the INITIAL question -- no, stepparent, YOU have no standing to appeal or object to anything. You have NO rights in any of this.
 

LdiJ

Senior Member
Simply from what OP has said here, I can absolutely see how not allowing Dad to designate a third party to pick up was held against Mom.
I view that one a little differently. It appeared to me that grandma was going to pick them up and keep them at her house until midnight, when dad would pick them up. I kind of see the point in dad picking them up the next morning. I can also see the child's point in not wanting to visit on school nights. If dad works 3-midnight, dad wasn't going to be seeing the children at all basically.

However, it was up to the judge to decide, and the judge made a best interest's decision. Therefore, either mom won't be relocating, or mom will have to give primary custody to dad if she does relocate.
 

databit

Member
Proserpina
Quote Originally Posted by anearthw View Post
I wouldn't be happy with that either. You (or your spouse - wife?) are saying that it is being generous to allow him to fly them out on occasion or travel there? Is that supposed to come out of HIS pocket? I'm sure most parents would prefer their children just stay put. It seems that your spouse did not convince a judge that this move was in the best interest of the child and that's that. Unfortunately, when we have children and then divorce, that can be a bit of an anchor for the time being and that is what appears to have happened.

I don't see grounds for an appeal, it seems to be a standard relocation denial. Arkansas is one of those states where you generally need a darn good reason for the children to relocate. There is, of course, always the option of switching custody and spouse/?wife? relocating.
Actually, it was offered to lower his child support, remove the requirement for him to carry the insurance and we pay the summer, spring break, winter and fall travel. In additional travel or travel he makes is at his own expense.
And as someone already said, Arkansas has a presumption for relocation.


Silverplum
Good Judge.

CP filed to relocate within 7 months of gaining her Exalted Status: I doubt that impressed Judge Good, either.
anearthw
Quote Originally Posted by Proserpina View Post
Simply from what OP has said here, I can absolutely see how not allowing Dad to designate a third party to pick up was held against Mom.
I don't see why mom would have done this and then expected the family to up and move far from dad based on her husbands job. That certainly appears to be the actions of someone looking to interfere with dads rights.
This was argued but the judge said that we showed the request for relocation wasn't done to interfere. I had history where the potential employer contacted me via Linkedin as well as history that showed resume's on job search sites had been disabled for a couple of years. Judge also said that he that we had plenty of good reasons to move

Ohiogal
And to answer the INITIAL question -- no, stepparent, YOU have no standing to appeal or object to anything. You have NO rights in any of this.
I knew I would miss an "I" somewhere and someone would comment this way. In the body of my post I specifically noted:
"Who am I? Stepparent aka person with no say or rights in the case, I am not an attorney or in any way associated with the legal field. I've done a bit of reading and wondering if we should even approach this with the attorney"

I'm fully aware I have no rights, I have ready the newbie sticky and understand that part.


So from the sounds of all this it looks like there is no cause for appeal. I was curious based on the order specifically stating that the "Defendant will pick up" not that the "Defendant will be responsible for pick up"


For those of you that are judging my wife on this, you don't know the whole case at all.
 

databit

Member
I view that one a little differently. It appeared to me that grandma was going to pick them up and keep them at her house until midnight, when dad would pick them up. I kind of see the point in dad picking them up the next morning. I can also see the child's point in not wanting to visit on school nights. If dad works 3-midnight, dad wasn't going to be seeing the children at all basically.

However, it was up to the judge to decide, and the judge made a best interest's decision. Therefore, either mom won't be relocating, or mom will have to give primary custody to dad if she does relocate.
agreed, and we are ok with that. Couple other bits from the new order really suck from a parenting of the kids standpoint but the order says what it says and no split custody is perfect.
 

Ohiogal

Queen Bee
Actually, it was offered to lower his child support, remove the requirement for him to carry the insurance and we pay the summer, spring break, winter and fall travel. In additional travel or travel he makes is at his own expense.
And as someone already said, Arkansas has a presumption for relocation.





This was argued but the judge said that we showed the request for relocation wasn't done to interfere. I had history where the potential employer contacted me via Linkedin as well as history that showed resume's on job search sites had been disabled for a couple of years. Judge also said that he that we had plenty of good reasons to move



I knew I would miss an "I" somewhere and someone would comment this way. In the body of my post I specifically noted:
"Who am I? Stepparent aka person with no say or rights in the case, I am not an attorney or in any way associated with the legal field. I've done a bit of reading and wondering if we should even approach this with the attorney"

I'm fully aware I have no rights, I have ready the newbie sticky and understand that part.


So from the sounds of all this it looks like there is no cause for appeal. I was curious based on the order specifically stating that the "Defendant will pick up" not that the "Defendant will be responsible for pick up"


For those of you that are judging my wife on this, you don't know the whole case at all.
No one was judging your wife. What happened was a discussion was done based upon the judge's order. The judge determined it was in the child's best interest to DENY the relocation. How much was his child support going to be lowered? Enough to cover all the transportation of his child to visit him? Because airfare could be very expensive. In addition, why was the child missing time with dad? The child SHOULD NOT have been allowed to ask her father not to go on visits. THAT is a no-no and something that your wife should not have allowed. The father should have been allowed to have his mother pick up the children for his visitation time. There are issues here that your wife caused or to which she contributed.
 
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databit

Member
No one was judging your wife. What happened was a discussion was done based upon the judge's order.
:-/ I re-read it and you are right, I guess I was being defensive. I was basing that partly on:

I don't see why mom would have done this and then expected the family to up and move far from dad based on her husbands job. That certainly appears to be the actions of someone looking to interfere with dads rights.
and ya, it's not judging but reviewing, just like I asked for. apologies for any offense anearthw
 
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