CP jailed, plan B?

[paterunum]

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

My thread (CP jailed, child with ex husband) was locked, I believe because of Mom482 postings. I don't think it should have been locked while I still need advice. I appreciate your moderation and sensitivity, but....

In response to Ronin, if I keep seeking advice here, it is because I recognize that my atty. may be trying to take advantage of my initial shock/enthusiasm, desire to seize the opportunity under the new circumstances. He might not be willing to give me a reality check as you do.

True, if some of the professionals here agree with Ronin, thinking that the courts will be supercautious in my regards, and not grant even temporary custody (is there something similar but "lower key," like an "emergency placement" while CPS's evaluation of CP is pending?), then I will rest my case, and go with what Ronin is suggesting: enforcing visitation, even increasing them, as much as I can.

Re. the psych. evaluation of CP, if CPS had so much authority to send my child to a non-relative (and I don't know the "horror" stories to which Ohiogal refers), could it not have just as much authority to impose a psych. eval. of CP? True, in a PREVIOUS case they reached the cautious conclusion that signs of her mental instability were a "controlled risk factor." It may very well be that, in light of the current events, they may have changed their mind.

Here's two possible alternatives, please tell me what you think:
1) file a motion for a final order - not an emergency order - since we haven't had a final one (under the new jurisdiction) since our temporary one in April. On that final order, I could address all the issues at once: the emergency placement, the violations of my visitation rights, the possibility of contempt of CP, the slander charges, etc.

2) in alternative, or WHILE the motion for final order is pending (I presume CP will ask for continuance as much as she can), I will ask her ex husband, now with my child, to allow visitations, and even more visitations than established by the CO, long term, AT MY PLACE (e.g. five days for Thanksgiving, and one week, as indeed set by CO, over Christmas - perhaps I could ask him to let me be with my son for TWO weeks over christmas). This is to establish a precedent at my place of residence. I think he will cooperate. He's not as unreasonable as CP.

I might not need to answer mom482 posts (at some point I even thought she might be the mother of my child!, but then no, CP would be far more irrational and offensive, - though I don't know much about mom482's previous postings, and she seems relatively rational, if somewhat polemical, here....): I am NOT trying to use the courts in my state, I am doing everything through TX. I only suggested that CPS from TX coordinate with CPS from here to conduct a background check on me and also do a homestudy, if required.

So, what do you think of options 1 and 2 (re. #2, there's a specific stipulation that WE requested in the CO, stating we are NOT allowed to interfere with family members of the other party, speaking in "derogatory" terms about the other parent. I don't intend to speak that way, and won't even mention CP and what happened, but just tell him I want visitation, and IF, and only IF he says NO, then I will tell him my next step is to ask the courts to send the child to me, and see if he will cooperate that way - but, as I said, I think he will cooperate anyway). Re. OPTION 1: is it possible, or am I trying to catch ALL in one sweep, while courts may not address all issues at once?What is the name of your state (only U.S. law)?

 

[paterunum]

There's been a new development in this. I did call CP's ex husband who is now taking care of my child, while CP is being investigated on her DWI with child on board. He did not let me speak, and told me he had filed a complaint with CPS based on something that the child told him... I am blown away.

CP had also reported me on child molestation charges, and both CPS and the Police Dept. (PD) ruled out the case. The child had forensic interviews. Now, CP's ex husband, to whom CPS sent the child after CP was arrested, restarted that case, with another CPS office, I believe (because he resides in a different area from CP). The alleged incident he filed is about the same dates of visitation I had with my child and which was previously reported by CP. So, this is now reported TWICE by two different people. I haven't received any calls from CPS yet.

Question 1: once a case is ruled out by one CPS office, can it be taken by another CPS office (if filed by another person)?

Question 2: my attorney and I were about to file for emergency custody - in the interim, I intended to visit with the child, according to the existing court order. That, together with my desire to check how the child was doing in all this development, presumably shocking for him, was the purpose of my call to the "care-taker". Now, the person who is with my child is not even allowing me to contact my child, let alone visit him (though it is court ordered): do I have grounds to file court contempt charges on him?

I said I am "blown away" because CP's ex husband has previously shown a much more reasonable attitude than CP. He's also chair of a child advocacy center, which may give him credibility. I know he's lying, or, at best, he's construing from a phrase the child may have said and that has nothing to do with child molestation whatsoever. I cannot actually imagine anything the child might have said, because nothing that could even remotely be misunderstood for molestation happened - so, the matter of the fact is that I have no clue of where this is coming from. During the previous investigations CPS and PD told me that the child didn't say anything suggesting foul play.

So, I am strongly inclined toward possibility #1: I think the "care-taker" is lying and he does have motive. CP is unstable, ex husband knows I may have enough grounds for custody; he also has two teenage children (of whom he has custody) from CP. If I should ever get custody, he would take all the brunt of CP's unstable nature. He has previously suffered similar accusations from CP, fought a long, hard battle for custody. It seems natural to me that he would want to divert CP's attacks toward me. But... this is only speculation, nothing I can prove in court - except for their horrid divorce records, which date 10 years back.

So far, I rest assured that the forensic interviews already found those allegations unfounded. CP filed a complaint charging the PD detective of "bias" in my favor.

So back to my two questions above, I would appreciate some advice. Thanks.

 

[CJane]

Look, the entire focus of CPS is reunification with the custodial parent. That's Mom. You're going to play hell getting them to let you take temporary custody of the child out of state.

Mom WILL be given EVERY opportunity to work a plan that will result in her getting the child back into her custody.

CPS WILL investigate each and every claim that they get, regardless of who it comes from or whether in the past they've determined the case to be unfounded.

I honestly think that you will NOT get custody of this child unless/until Mom is sentenced to a significant amount of time in jail.

 

[paterunum]

OK, I'm trying to figure out my chances too. As explained in previous postings, together with this DWI with child on board, CP has a record of violations of the CO, which, according to my atty. should give enough grounds for at least temporary custody. He favors a "two-step" approach: get temporary now - with a fallback option of just modifying and enforcing visitation arrangements (in case the judge doesn't grant temp. custody), and, in the final order, file for permanent custody. .... like you, I am skeptical.

I was asking my atty. for the one step, more straightforward, less demanding approach: a final order that modifies and enforces visitations better than the temp. order does, and, perhaps, for this immediate and only time, extended time (not custody) with me during the Christmas Holidays (the whole break, instead of the standard one week). He argued that, if eventually I should go for custody, I would have a hard time proving a change of circumstances.

But, besides contemplating what's feasible, I also have to take into account that I am covered in loans, and I simply cannot face the costs of a long drawn custody battle as this would be - not with such limited chances of success, as some of you have indicated.

Question 2 remains unanswered: regardless of CPS investigation, don't I still have my court ordered rights of visitation? And isn't this care-giver NOT entitled to deny them?

Yet, this is how it gets tricky. I still need to notify the CP of imminent visits. CO establishes that I pick up or fly the boy from her city. Her ex husband lives in an area 300 miles away (and closer to me, BTW). Could he or CP quibble that the CO says nothing about picking up and drive the child from his place? (My atty. says that if CPS had taken custody of the child, I would have been notified by no - so, CP is still the custodial, and, no matter if she is in rehab or not, I need to notify her.)

 

[LdiJ]

OK, I'm trying to figure out my chances too. As explained in previous postings, together with this DWI with child on board, CP has a record of violations of the CO, which, according to my atty. should give enough grounds for at least temporary custody. He favors a "two-step" approach: get temporary now - with a fallback option of just modifying and enforcing visitation arrangements (in case the judge doesn't grant temp. custody), and, in the final order, file for permanent custody. .... like you, I am skeptical.

I was asking my atty. for the one step, more straightforward, less demanding approach: a final order that modifies and enforces visitations better than the temp. order does, and, perhaps, for this immediate and only time, extended time (not custody) with me during the Christmas Holidays (the whole break, instead of the standard one week). He argued that, if eventually I should go for custody, I would have a hard time proving a change of circumstances.

But, besides contemplating what's feasible, I also have to take into account that I am covered in loans, and I simply cannot face the costs of a long drawn custody battle as this would be - not with such limited chances of success, as some of you have indicated.

Question 2 remains unanswered: regardless of CPS investigation, don't I still have my court ordered rights of visitation? And isn't this care-giver NOT entitled to deny them?

Yet, this is how it gets tricky. I still need to notify the CP of imminent visits. CO establishes that I pick up or fly the boy from her city. Her ex husband lives in an area 300 miles away (and closer to me, BTW). Could he or CP quibble that the CO says nothing about picking up and drive the child from his place? (My atty. says that if CPS had taken custody of the child, I would have been notified by no - so, CP is still the custodial, and, no matter if she is in rehab or not, I need to notify her.)

You may not have your visitation rights right now. If CPS has taken the child and placed him with the ex-husband, then the child is legally in CPS custody and they determine who gets to visit with the child and when, unless they are overidden by a judge, as part of the CPS case.

Dad, it sounds like your child is saying SOMETHING that leads people to suspect sexual molestation. You need to figure out what that is. Could your child have seen something that you didn't realize that he saw while in your care?...or heard you say something to another adult that you didn't realize that he heard, that he is now parroting back? Think about it carefully.

 

[paterunum]

You may not have your visitation rights right now. If CPS has taken the child and placed him with the ex-husband, then the child is legally in CPS custody and they determine who gets to visit with the child and when, unless they are overidden by a judge, as part of the CPS case.

Dad, it sounds like your child is saying SOMETHING that leads people to suspect sexual molestation. You need to figure out what that is. Could your child have seen something that you didn't realize that he saw while in your care?...or heard you say something to another adult that you didn't realize that he heard, that he is now parroting back? Think about it carefully.

Again, I had no notice from CPS. Instead, I had an email response from them, stating in no unquestionable terms that 1) CP is still the custodial and they just sent the child to the family member that SHE voluntarily selected (they never said they got a court order or anything else to do this - she was arrested, taken into custody, and the child was sent to step-sister, then to ex husband, period); 2) they will not "prohibit me from having contact and exercising your visitation rights with your son" (their words). I really do not understand why several people here are insisting that CPS could NOT have placed the child in somebody else's care WITHOUT getting a court order granting custody to them.

Did my child observe or hear anything? Look, I have been walking on eggs each time I visited with him, knowing that a minimal thing (like say, switching channels and accidentally zipping through a rated R movie - or giving my son a shampoo - not a bath - a shampoo, mind) could be magnified by CP beyond any reasonable argument. After thinking long and hard, and actually knowing what CP has alleged (that I am bisexual and cross dress - neither of which I have EVER done), I can only surmise that he may have said sthg. about me "imitating mom".

Here's the story: he was playing with a toy gun with foam darts. I told him not to shoot at people, especially on the face. He then asked me if he could shoot me "in the butt". I said OK. He enjoyed that a lot as I pretended to be hurt saying "ouch!" each time.... Then he said he would do this at home with mom as well. So, while I was fixing him a meal, I "pretended" to be her, waving my rear like a lady and saying ouch with high pitch voice (and I did not wear anything that could suggest femininity - just walked around like that in my jeans and shirt). The interesting part of all this is that I have it on video too. I never had the need to send this video to CPS or the PD, because they ruled out the case based on all the other evidence and the child's forensic interview.

If THAT is what CP and her ex husband built on (I cannot think of ANYTHING else), then this is really a pathetic excuse to frame me as CP has tried countless times. Worse still, an excuse that may affect my child emotionally, transforming an innocent mocking game into something perverted - instructing him to fear so many things, leading him to paraonoia levels. This is not just a misunderstanding. There's been malicious intent from day one, and I can prove it through the countless ways (recorded) in which CP "instructed" the child on these matters. (BTW, I think I said that the child did tell me that mother does that, and that he didn't "believe her").

 

[CJane]

I really do not understand why several people here are insisting that CPS could NOT have placed the child in somebody else's care WITHOUT getting a court order granting custody to them.

I think there's a misunderstanding in what happened, and CPS' involvement.

Sounds to me like what happened is Mom was being arrested, and since she had a child with her, the arresting officer(s) called CPS to the scene. CPS then asked Mom if there was a competent adult that they could take the child to during her incarceration. Mom named Step-sister, and later Ex husband.

I don't think child WAS "removed by CPS" or that the child is in CPS custody. I think they simply facilitated the transfer of possession from Mom to another adult.

On another note, I think that your attorney is planning to draw this out in a manner that is NOT beneficial to you or your case.

 

[Ronin]

I agree with CJane. It appears everything done so far was by agreement.

Question 2 remains unanswered: regardless of CPS investigation, don't I still have my court ordered rights of visitation? And isn't this care-giver NOT entitled to deny them?

Yes.

 

[CJane]

Yes.

BUT if your order is written that you have to notify MOM and it specifically states that you're to pick kiddo up at HER residence, you're going to face enforcement problems.

 

[Ronin]

BUT if your order is written that you have to notify MOM and it specifically states that you're to pick kiddo up at HER residence, you're going to face enforcement problems.

Possibly. But if he is not allowed to pick his child up at his designated times, then any enforcement actions by means of contempt of court will need to be directed against mom.

The fact that the custodial parent got herself thrown in jail does not relieve her of the obligation to ensure the other parent is able to exercise his court ordered rights of access and possession. Since her legal right to the child was not taken away from her, she still has the authority to inform the child's current caregiver that the child is to be made available for pickup by the father at his designated times.

 

[paterunum]

Possibly. But if he is not allowed to pick his child up at his designated times, then any enforcement actions by means of contempt of court will need to be directed against mom.

The fact that the custodial parent got herself thrown in jail does not relieve her of the obligation to ensure the other parent is able to exercise his court ordered rights of access and possession. Since her legal right to the child was not taken away from her, she still has the authority to inform the child's current caregiver that the child is to be made available for pickup by the father at his designated times.

So you're saying I can notify CP and let her know that her ex husband should take the boy to her place, 300 miles away? I can't see cooperation from either one of them there. Are you also saying that if they say no, they are in contempt? What if the boy does not want to... fly.

Yes, because here's another problem: the current CO only contemplates flight arrangements for when the boy should visit here, NOT driving. The boy, the last time I saw him, was convinced that flying is "dangerous" (another "nice" thing CP did) and would not want to hear about it. He said driving would be OK. My atty. and I, before all this CPS mess started, were going to get a modification of the order to facilitate those travel arrangements.

So, it seems to me that before trying to arrange for any visitation, I must have a modified court order (BTW, this temp. order was entered by her, pro se, without notifying my atty. properly, and does NOT follow what the transcripts of the Court hearing said). In that case, if I stand no chance for temporary custody, as you all say, I can then go with plan B, as stated originally: just trying to enforce my visitation rights, and possibly charge CP with some kind of sanction, if not contempt. I mean, c'mon, even the PD that was investigating AGAINST me and has now ruled out her charges, has SOLICITED me to press charges against her for harassment, after seeing what she had done, especially her notes to my bosses and colleagues at work.

One word in favor of the case for temp. custody: if I don't do it under these circumstances, then when? Besides, I have been told many times that if I really want to get my full NCP enforceable rights, I must play a little hard ball, and bargain for more. Also this kind of hard ball may put CP into her place, instead of having me as a pushover. Does that reasoning make sense to you? (I have always taken it with skepticism, because I also think that asking for too much may backfire - and you, CJane, are also suggesting that it is "NOT beneficial to my case": in which way?

 

[CJane]

Look, you can't file contempt against THEM. A 3rd party cannot be in violation of the order.

What EXACTLY does the order state regarding visitation?

And here's my advice to you. You come off here as if you're grasping at straws and have no idea what it is you're trying to accomplish... and that's lining your attorney's pockets, but it's not helping YOU and it's not in your kid's best interests.

You need to sit down and breathe. And then figure out exactly what you want to accomplish not only RIGHT NOW, but long term. What is best for the child RIGHT NOW and long term? What is best for YOU? What is best for MOM?

What is your attorney pushing? Why?

Do you want residential custody? Or just to be able to enforce your visitation?

Do you want to spend the next 16 years in court, fighting with Mom over every little thing, no matter WHO has custody?

Seriously. You're not doing your case or your child any good when you're focused on how to "Win" this thing, or coming up with a better plan B. You're just not.

 

[Ohiogal]

If CPS is involved and has a court case then all prior orders are null at this point. They matter not> YOU only have the rights CPS gives you as CPS is the actual custodian at this point and the ex has PLACEMENT. Again you need to find out about the court case that CPS has brought. Understand? CPS is to reunify with the parents -- including you -- HOWEVER that is not going to happen right away.

 

[my life is mine]

Does anyone wonder why he keeps referring to his son as "the boy"?

 

[CJane]

If CPS is involved and has a court case then all prior orders are null at this point. They matter not> YOU only have the rights CPS gives you as CPS is the actual custodian at this point and the ex has PLACEMENT. Again you need to find out about the court case that CPS has brought. Understand? CPS is to reunify with the parents -- including you -- HOWEVER that is not going to happen right away.

OG, I really don't think there IS a CPS case at this point. I think they just stepped in to transfer the boy to another adult caregiver when Mom was arrested. Doesn't sound TO ME like they have any further involvement.