Relocation Case, Had Evaluation, Judge Signed Order, I Just Filed Set Aside Order

[FierceFoxie]

What is the name of your state (only U.S. law)? California

In 2010, I wanted to relocate to another city 2 1/2 hours away from dad. Dad would only let me move if I agreed to do all the transportation. We had to go through mediation and our mediated order stated that I would do all transportation. After 3 mediated appointments, we did not come to an agreement so we were sent the JCC route.

Dad suddenly requested full custody even though I was fulfilling all of my requirements as outlined in our mediated order which was never filed. We had to go through an evaluation. I was only asking that exchanges be done in a city halfway between where dad and I live.

The evaluator came back with his recommendation stating dad would have care and control of the child every 5th weekend of the month and that these 5th weekend exchanges were to take place in a specific city that is halfway between us.

At the hearing, the evaluator did not attend since neither of us had filed objections. Dad's lawyer argued that the 5th weekend was a supplement to what was in the mediated order and that it was an option should dad choose to have that visit. I told the judge my understanding was that every 5 weekends, dad would have a visit. Again dad's lawyer argued that the 5th weekend was a supplement and showed on the calendar how only a few months a year actually have 5 weekends in them and it would be those months in which dad would get to exercise that option to have the child if he chooses.

The lawyer also snuck back in our old order stating that the evaluator said in his orders that all orders not in conflict with this order shall remain in full force and effect. The judge mentioned that the order was from 2010 and the lawyer argued it was what we had been going by for the past 2 years. I was asked if I agree and I did; only I did not see that I would still be responsible for all transportation according to the old 2010 mediated order. It was my understanding that all exchanges would be done in that halfway city because as I stated, I thought the evaluator was suggesting that dad would now only see the child every 5 weekends.

The judge signed and filed the old 2010 mediated order as though it is a new 2012 one and signed the evaluator's orders too.

I went to the self help center and filed a motion to set aside the order with points that I signed in mistake or surprise. In alternative, I am asking to modify the exchange location to specifically say all exchanges are to be done in the city halfway.

What do I need to do to argue my point in court? I honestly read the evaluators order to say the exchanges would be done in that halfway city and not this new suggested "5th weekend option" dad's lawyer had interpreted. Financially I cannot afford this drive. I work from home and the past few months my business has suffered a tremendous loss in earnings.Some months it is $300 in gas and food not to mention I have to leave early on Friday's (stop my work day early) to drive him 2 1/2 hours and then on my way home I hit rush hour traffic so I get another 45 min added onto my drive home, so I am looking at 5-6 hours round trip. By the time I come home, I do not get to enjoy my weekend or enjoy the one weekend where I can just be an adult. My Sunday's are then rushed by the same thing. I have to leave pretty much after church to pick up my son from his dad and make it home in time for his bedtime.

 

[I'mTheFather]

What is the name of your state (only U.S. law)? California

In 2010, I wanted to relocate to another city 2 1/2 hours away from dad. Dad would only let me move if I agreed to do all the transportation. We had to go through mediation and our mediated order stated that I would do all transportation. After 3 mediated appointments, we did not come to an agreement so we were sent the JCC route.

Dad suddenly requested full custody even though I was fulfilling all of my requirements as outlined in our mediated order which was never filed. We had to go through an evaluation. I was only asking that exchanges be done in a city halfway between where dad and I live.

The evaluator came back with his recommendation stating dad would have care and control of the child every 5th weekend of the month and that these 5th weekend exchanges were to take place in a specific city that is halfway between us.

At the hearing, the evaluator did not attend since neither of us had filed objections. Dad's lawyer argued that the 5th weekend was a supplement to what was in the mediated order and that it was an option should dad choose to have that visit. I told the judge my understanding was that every 5 weekends, dad would have a visit. Again dad's lawyer argued that the 5th weekend was a supplement and showed on the calendar how only a few months a year actually have 5 weekends in them and it would be those months in which dad would get to exercise that option to have the child if he chooses.

The lawyer also snuck back in our old order stating that the evaluator said in his orders that all orders not in conflict with this order shall remain in full force and effect. The judge mentioned that the order was from 2010 and the lawyer argued it was what we had been going by for the past 2 years. I was asked if I agree and I did; only I did not see that I would still be responsible for all transportation according to the old 2010 mediated order. It was my understanding that all exchanges would be done in that halfway city because as I stated, I thought the evaluator was suggesting that dad would now only see the child every 5 weekends.

The judge signed and filed the old 2010 mediated order as though it is a new 2012 one and signed the evaluator's orders too.

I went to the self help center and filed a motion to set aside the order with points that I signed in mistake or surprise. In alternative, I am asking to modify the exchange location to specifically say all exchanges are to be done in the city halfway.

What do I need to do to argue my point in court? I honestly read the evaluators order to say the exchanges would be done in that halfway city and not this new suggested "5th weekend option" dad's lawyer had interpreted. Financially I cannot afford this drive. I work from home and the past few months my business has suffered a tremendous loss in earnings.Some months it is $300 in gas and food not to mention I have to leave early on Friday's (stop my work day early) to drive him 2 1/2 hours and then on my way home I hit rush hour traffic so I get another 45 min added onto my drive home, so I am looking at 5-6 hours round trip. By the time I come home, I do not get to enjoy my weekend or enjoy the one weekend where I can just be an adult. My Sunday's are then rushed by the same thing. I have to leave pretty much after church to pick up my son from his dad and make it home in time for his bedtime.

I'm a little confused. Why do you think dad should have to drive 2.5 hours to see his child just because you moved?

 

[Proserpina]

What is the name of your state (only U.S. law)? California

In 2010, I wanted to relocate to another city 2 1/2 hours away from dad. Dad would only let me move if I agreed to do all the transportation. We had to go through mediation and our mediated order stated that i would do all transportation. After 3 mediated appointments, we did not come to an agreement so we were sent the JCC route.

Dad suddenly requested full custody even though I was fulfilling all of my requirements as outlined in our mediated order which was never filed. We had to go through an evaluation. I was only asking that exchanges be done in a city halfway between where dad and I live.

The evaluator came back with his recommendation stating dad would have care and control of the child every 5th weekend of the month and that these 5th weekend exchanges were to take place in a specific city that is halfway between us.

At the hearing, the evaluator did not attend since neither of us had filed objections. Dad's lawyer argued that the 5th weekend was a supplement to what was in the mediated order and that it was an option should dad choose to have that visit. I told the judge my understanding was that every 5 weekends, dad would have a visit. Again dad's lawyer argued that the 5th weekend was a supplement and showed on the calendar how only a few months a year actually have 5 weekends in them and it would be those months in which dad would get to exercise that option to have the child if he chooses.

The lawyer also snuck back in our old order stating that the evaluator said in his orders that all orders not in conflict with this order shall remain in full force and effect. The judge mentioned that the order was from 2010 and the lawyer argued it was what we had been going by for the past 2 years. I was asked if I agree and I did; only I did not see that I would still be responsible for all transportation according to the old 2010 mediated order. It was my understanding that all exchanges would be done in that halfway city because as I stated, I thought the evaluator was suggesting that dad would now only see the child every 5 weekends.

The judge signed and filed the old 2010 mediated order as though it is a new 2012 one and signed the evaluator's orders too.

I went to the self help center and filed a motion to set aside the order with points that I signed in mistake or surprise. In alternative, I am asking to modify the exchange location to specifically say all exchanges are to be done in the city halfway.

What do I need to do to argue my point in court? I honestly read the evaluators order to say the exchanges would be done in that halfway city and not this new suggested "5th weekend option" dad's lawyer had interpreted. Financially I cannot afford this drive. I work from home and the past few months my business has suffered tremendous loss in earnings.Some months is $300 in gas and food not to mention I have to leave early on Friday's (stop my work day early) to drive him 2 1/2 hours and then on my way home I hit rush hour traffic so I get another 45 min added onto my drive home, so I am looking at 5-6 hours round trip. By the time I come home, I do not get to enjoy my weekend or enjoy the one weekend where I can just be an adult. My Sunday's are then rushed by the same thing. i have to leave pretty much after church to pick up my son from his dad and make it home in time for his bedtime.

I'm honestly not seeing where you can reasonably appeal what you AGREED to in court - this isn't as if the judge ordered something against your will; you were asked, and you agreed.

 

[FierceFoxie]

I'm honestly not seeing where you can reasonably appeal what you AGREED to in court - this isn't as if the judge ordered something against your will; you were asked, and you agreed.

I agreed because the only thing that stuck out in my mind was that the evaluator stated exchanges would be done in the city in-between. The lawyer confused me by suddenly bringing up the old mediated order. I pretty much thought that was not considered once an evaluation is done. Isn't an evaluation asking the court to decide how custody arrangements go because mediation is a failure?

 

[FierceFoxie]

I'm a little confused. Why do you think dad should have to drive 2.5 hours to see his child just because you moved?

There were circumstances why I moved. I didn't move just because I felt like it. The family home had an adjustable rate loan and my mortgage was raised $400 suddenly. I could not afford it and so my only option was to move back home with my parents. All of my family live in the city I was requesting the move away too. His name was still on the loan for the home so if the home went into foreclosure, it would also damage his credit. My intentions were to either get renters into the home and I would most likely have to pay the difference from what i could get from rent onto the mortgage or short sell it.

 

[Proserpina]

I agreed because the only thing that stuck out in my mind was that the evaluator stated exchanges would be done in the city in-between. The lawyer confused me by suddenly bringing up the old mediated order. I pretty much thought that was not considered once an evaluation is done. Isn't an evaluation asking the court to decide how custody arrangements go because mediation is a failure?

Unfortunately (for you), this is what can happen when the other party has counsel and you don't: Dad and his attorney did what they what they would have been expected to do - ask to keep the bits they liked, and change only to Dad's advantage the bits that you wanted to change. If you misunderstood or misinterpreted something, that's not their fault.

I can't see where the attorney or judge did anything wrong, legally speaking, and unless California is a little weirder than usual, you changing your mind is not a valid reason to challenge the order after it's been made.

 

[Ohiogal]

I agreed because the only thing that stuck out in my mind was that the evaluator stated exchanges would be done in the city in-between. The lawyer confused me by suddenly bringing up the old mediated order. I pretty much thought that was not considered once an evaluation is done. Isn't an evaluation asking the court to decide how custody arrangements go because mediation is a failure?

So you thought dad would only get to visit three or four times a year AND do half the transportation when you moved? An evaluation doesn't control. It is something that can be used to help the court make a decision. The old mediated agreement still stands and is an order. You are shouldering most of the costs due to the fact that you moved. That is the price of moving. And the mediated order YOU AGREED TO and were following. The evaluation was NOT replacing everything. It was an addition. So why should dad be penalized because of YOUR choices?

 

[Ohiogal]

There were circumstances why I moved. I didn't move just because I felt like it. The family home had an adjustable rate loan and my mortgage was raised $400 suddenly. I could not afford it and so my only option was to move back home with my parents. All of my family live in the city I was requesting the move away too. His name was still on the loan for the home so if the home went into foreclosure, it would also damage his credit. My intentions were to either get renters into the home and I would most likely have to pay the difference from what i could get from rent onto the mortgage or short sell it.

It was a CHOICE to remove the children from their father. You could have moved and let the children move in with their dad. You didn't choose to allow that. You wanted to move the children from their father. Did you divorce dad? If so, what did the divorce decree state about the house?

 

[FierceFoxie]

It was a CHOICE to remove the children from their father. You could have moved and let the children move in with their dad. You didn't choose to allow that. You wanted to move the children from their father. Did you divorce dad? If so, what did the divorce decree state about the house?

That was not an option. My son's father only saw him 2 weekends a month before we moved and never once asked for additional time. I have been his primary caregiver since birth. It only became an issue when I asked to move. We had been divorced for 5 years when I petitioned to move.

The divorce decree stated that the house was awarded to me but the issue was his name was on the loan still. he could not be removed unless I qualified for a new loan. Obviously; he was the bread winner in the marriage and he was the one who was listed primarily on the loan and I was a co-signer.

My intention of posting this was not to get a reaction of my choices that I made. It is not my intent to deny my son seeing his father at all. The burden of their visitation is all on my shoulders and for that I feel it's unfair. He doesn't call our son and hasn't even fulfilled half of his Skyping sessions that were court ordered last fall.

I am posting for advice on how I can argue that it was unfair of his lawyer to pull out an old mediated order and act as though it was a new one when i was under the impression that all exchanges would be done in the halfway city as the interviewer recommended.

 

[Proserpina]

That was not an option. My son's father only saw him 2 weekends a month before we moved and never once asked for additional time. I have been his primary caregiver since birth. It only became an issue when I asked to move. We had been divorced for 5 years when I petitioned to move.

The divorce decree stated that the house was awarded to me but the issue was his name was on the loan still. he could not be removed unless I qualified for a new loan. Obviously; he was the bread winner in the marriage and he was the one who was listed primarily on the loan and I was a co-signer.

My intention of posting this was not to get a reaction of my choices that I made. It is not my intent to deny my son seeing his father at all. The burden of their visitation is all on my shoulders and for that I feel it's unfair. He doesn't call our son and hasn't even fulfilled half of his Skyping sessions that were court ordered last fall.

I am posting for advice on how I can argue that it was unfair of his lawyer to pull out an old mediated order and act as though it was a new one when i was under the impression that all exchanges would be done in the halfway city as the interviewer recommended.

Honestly - I can't see how you even have an appeal here.

Unfair doesn't mean illegal or wrong. It simply means (in this case, at least) that Dad lawyered up and you were out-lawyered.

It happens.

 

[stealth2]

You really have nothing. The whole 5th weekend thing was likely IN ADDITION TO the existing visitation. Previous orders remain in effect except for the changed/added portions.

And, yeah - you created the distance. It's not crazy to think you should mitigate that situation by providing transportation.

 

[ecmst12]

It's entirely fair for you to bear the burden of transportation costs - you are the one who moved away.

 

[Ohiogal]

That was not an option. My son's father only saw him 2 weekends a month before we moved and never once asked for additional time. I have been his primary caregiver since birth. It only became an issue when I asked to move. We had been divorced for 5 years when I petitioned to move.

The divorce decree stated that the house was awarded to me but the issue was his name was on the loan still. he could not be removed unless I qualified for a new loan. Obviously; he was the bread winner in the marriage and he was the one who was listed primarily on the loan and I was a co-signer.

My intention of posting this was not to get a reaction of my choices that I made. It is not my intent to deny my son seeing his father at all. The burden of their visitation is all on my shoulders and for that I feel it's unfair. He doesn't call our son and hasn't even fulfilled half of his Skyping sessions that were court ordered last fall.

I am posting for advice on how I can argue that it was unfair of his lawyer to pull out an old mediated order and act as though it was a new one when i was under the impression that all exchanges would be done in the halfway city as the interviewer recommended.

So basically you are lucky dad didn't take you back to court for harming his credit by getting behind on the mortgage or paying the mortgage late for one payment. You should have not asked for the house if you couldn't afford it. You made a bad choice. Dad doesn't have to pay for that.
It is your intent to make visitation difficult by forcing dad to shoulder the costs of YOUR choice. Visitation for him is a right NOT an obligation. You are NOT going to be able to argue that his attorney was UNFAIR. That is not a legal argument. His attorney has NO duty to you. It is extremely fair that the evaluation becomes an addendum (addition) the status quo (mediated agreement) and both become orders. That is what is fair for DAD and the child. What is fair for you doesn't matter. This is about the child. Not about you.