Need more advice - Trying to get custody

[ziphash]

I posted about this previously and was given advice. Now, I need some more help.

My ex(second) & I are in the middle of fighting over jurisdiction of custody. Jurisdiction is currently here in OH. A hearing to dismiss my ex's case is set in AL for 11/14. After jurisdiction is decided, I will try to get custody of my son. I was told that if I file before jurisdiction is decided, I will definitely lose jurisdiction.

During my visitation, I took my 2 yr. old son to Easter Seals because I thought he was behind for his age. I met with the doctor from Easter Seals today so she could go over all the reports with me. My son was tested by physical, speech, & occupational therapists and had a Bayley test (comprehensive) done. The results are that my son is 30-35% behind kids his age. Physical, occupational, & speech therapies along with a play group once a week were recommended. Without these, my son will not learn the things a normal child should know.

Although, I haven't told my ex that I had my son evaluated, I have tried several times to tell her that he is behind. She disagrees & has stated that he is ahead of all the kids down there where she lives. (All conversations are taped.) She doesn't want to hear anything about him being behind.

My question is should I tell her he was evaluated & I got the results today? Or do I not say anything until it's brought up in court?

I don't want to keep it from her. Yet, it's obvious she doesn't care. I just want to do whatever will help my case because I know that as long as he's with her my son doesn't have a chance to be a normal kid. If my ex had listened to me when I tried to tell her I was worried about him last year (and several times this year), I wouldn't have had to have him evaluated without her knowing.

I'd appreciate any advice in this matter.


[This message has been edited by ziphash (edited November 08, 2000).]

[This message has been edited by ziphash (edited November 08, 2000).]

[ziphash]

x

[LegalBeagle]

[QUOTE][i]Originally posted by ziphash [/i]
[B]I posted about this previously and was given advice. Now, I need some more help.

My ex(second) & I are in the middle of fighting over jurisdiction of custody. Jurisdiction is currently here in OH. A hearing to dismiss my ex's case is set in AL for 11/14. After jurisdiction is decided, I will try to get custody of my son. I was told that if I file before jurisdiction is decided, I will definitely lose jurisdiction.
[/B][/QUOTE]

Why are you trying to dismiss the jurisdiction issue in AL when that is where the child lives ? How long have they been living in AL and prior to the filing, when was the last court action ?

[ziphash]

This is my 3rd attempt to post this. I hope it shows up this time.

The reason I want to keep jurisdiction is because I want custody of my son. If AL takes jurisdiction, I’ll have to have to keep going to AL every time my ex is in contempt & I want to file. My son has been in AL since last Nov. I know this is over 6 mos. which has been brought up in other posts about jurisdiction. The attorney I got in AL filed a motion to dismiss based on these reasons:

(1) I was never served w/papers concerning changing jurisdiction. The only reason I knew about it was because a week before I was to get my son for summer visitation, my ex called & told me she already had jurisdiction transferred & I no longer had visitation rights. I called an attorney in AL & he found out when the hearing was.

(2) The 1st hearing on custody was 7/7/99 when my ex got custody. The attorney said that if there’d been any hearings w/in the last 3 yrs. our courts should keep jurisdiction.

(3) Contempt charges were filed on 6/19/00 in OH because my ex wouldn’t let me have my son for summer visitation. I drove all the way down to AL w/the new court order & she called the sheriff on me & wouldn’t even let me see my son.

(4) There was another hearing on 8/10/00 in OH where she was ordered to give me 5 wks. visitation. By doing that w/in 30 days, she would purge herself of the contempt charges which included 3 days in our county jail, $250 fine, plus court costs.

(5) She didn’t comply with Sec. 3109.051 (G) of Ohio Revised Code because she didn’t file notice of intent to relocate.

(6) In the 8/10/00 hearing, child support was addressed.

(7) The attorney also noted AL Code Sections 30-3A-205(d), 30-3A-207(a), and 30-3A-207(d).

He is asking that because of all these factors the “Plaintiff’s Motion for Contempt and Rule Nisi should be dismissed.” (My ex added in w/the jurisdiction motion a contempt charge alleging I was behind in child support which I am not & have documentation to prove it.)

It sounds like you have all your ducks in a row (Documentation together). Good for you!

Let's try to look at this from someone having to make a decision about you vs your ex. (The judge)

IF you keep this information from your ex, it appears that you are not in this for the best interests of your child. (Or her rep could at least argue that!)

IF you give your ex this information, it appears that you are doing your best to work with your ex in doing what is right by your child.

Your ex could

A) Jump up and down and scream at you and/or
B) Calmly become distressed and try to remedy the situation (which doesn't help your case but helps your child, so who is complaining?)
C) Not do a thing different and pretend she didn't receive it. (This helps your case.)

I don't really see a down side to you informing her and I definitely see a down side to you not informing her.

On the other hand, every child develops at different rates and your child may be excelling in something that was not tested for whatever reason. I don't know this. You know your child, so you will have to do what you think is best in this instance.

Tig

(P.S. Your ex's argument that your child is ahead of all the kids down there may be valid. Have you checked with his daycare/preschool and spoken to his teacher/care provider about his progress or lack there of? If not, do so. If you don't have the info, ask for it politely. If she refuses to give it to you, send a certified, return receipt letter expressing your desire to have the applicable info.)

[ziphash]

Thanks for your advice, Tigres.

As far as the daycare goes, my ex doesn't send my son to daycare or preschool. She doesn't have any other children or any relatives w/children close to that age so I have a hard time believing that she even knows any other kids that my son is ahead of. He spends about 90% of his time w/his grandmother & great grandparents which I think contributes to his being behind because they are disabled and unable to do some everyday activities. Her mother sent pictures for me that showed my son laying on the floor w/a playpen in the background. The doctors said this could be one of the reason's he's so far behind. If he's being stuck in a playpen all day, he's not getting the opportunity to do what he should be doing. She also had him on a drug for psychoneurosis. That drug would just knock him out so she wouldn't have to deal w/him. When she got him after my 5 wks. visitation, she heard him talk and she actually started screaming that she couldn't believe he said "ball"! This came from a woman who'd said he'd been talking for the last year!

The main reason I was worried about telling her is because the jurisdiction is still up in the air at this point. I was afraid that if I told her before the hearing to dismiss that she could say I was interfering & would get jurisdiction because of that. Yet, whether I have custody or not, my son has definitely got to be treated.

I could go on and on about the crazy things she's tried to pull over the last year, but I think you'd probably get tired of reading!

Thanks again.

[QUOTE][i]Originally posted by ziphash [/i]
[B]I could go on and on about the crazy things she's tried to pull over the last year, but I think you'd probably get tired of reading!

Thanks again. [/B][/QUOTE]

As long as you keep it in one post, use paragraphs, etc... Probably no one would mind even if it was just to vent!

Tig

[ziphash]

LegalBeagle, IAAL, anyone else...Can you give me any advice about this? Does the info my attorney filed in the motion to dismiss sound like it will help my case?

[Edited by ziphash on 11-12-2000 at 07:04 PM]

[LegalBeagle]

Since there has been continuing action in OH then AL should decline jurisdiction. However, if they do, and you win custody in OH, you still have to file in AL for enforcement.

Your attorney is wrong about jurisdiction being kept for 3 years after a custody case (unless it is in the court order) .. but that should not matter.. now, if she filed anything in the AL prior to your filing then it gets messy.

I personally would not tell her about the testing. Get jurisdiction sorted first.

[ziphash]

I think that she did file for arrearages in cs & jurisdiction before I filed the contempt charges. I don't know for sure because I've never been served.

Why wouldn't AL enforce an ruling on custody from OH? If I get custody, what would I file in AL to have it enforced? When I went to AL in June w/the court order for my visitation, the sheriff's deputy said I would have to have one of their judges sign it if I wanted them to do anything. He said I could probably just go to the courthouse & have it done. Would I need to get an attorney to do that? The reason we didn't have the AL judge sign it was because I was afraid that might give them jurisdiction because it was brought up in front of their judge.

[ziphash]

I have another question. My ex said she wants to work out our own visitation guidelines. We are supposed to be going by the original guidelines. They were never modified because of the distance that she moved. That means that I get my son for the normal amount of time every other Easter, Thanksgiving, second half of summer, etc. We're both equally responsible for transportation.

She wants to change it to me getting half of summer & she'll pay for half of that transportation. The only other time she wants me to get him is 3 wks. for Thanksgiving, but I have to pay all transportation. She says she's not going to give him to me for X-mas because she's afraid he'll get up here & it'll snow & she'll miss her Christmas with him. She also said we could just have our Christmas early. I have 4 other kids & she has only him.

I think it's unfair for her to expect me to pay for most of the transportation since she's the one who moved. It's also not fair to expect my family to have X-mas early every year just so she can enjoy her X-mas.

She told me if I don't agree, she'll just take it to court & the judge will agree with her anyhow. I told her I'll just leave it up to the judge then. Would a judge give me visitation only at Thanksgiving & half of summer & make me pay for 75% of transportation costs when she's the one who moved?