Hearing question

[breezybaby26]

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

I am the mother of our 6 yr old. The father and I share 50/50 legal custody and I have Physical custody. We have an ongoing custody case in which the father is continuously taking me to court in an effort to obtain physical custody. He has not succeed. He, again, has filed a motion to modify the current custody agreement/visitation. Due to the repetitive filings, the judge is becoming more aggravated with our case. (This is my opinion, not fact.)

In brief, the father came to pick up our son, Friday night, for his regular visitation. However, he was definitely under the influence of something as he couldn't walk properly, his speech was slurred and his pupils were dilated. He was also shining a video camera in my face. He became belligerent with me when I suggested he switch a weekend with me as I did not feel comfortable with him driving in his current state. I live on a military base and my current husband called the police dispatch as soon as it was clear that the father could barely function. The father was so argumentative that I asked our son to go inside as the situation was escalating and I did not want him to see us fight. Before the police arrived the father sped away, stating that I was refusing him his visitation.

I understand that I do not have the right to deny him visitation. I just was trying to have a police officer decide whether he was ok to drive and if not I would be able to have a report to back this up. I called CPS and reported the situation. I also tried calling the father numerous times over the weekend to discuss the situation and notified him of my intent to file an Ex Parte motion requesting supervised visitation pending our future hearing.

I attended the hearing this morning and the father was not present. The judge granted my request due to the father not appearing, but set the matter for review this coming Friday. What does this mean and how do I prepare for the hearing?

In my Ex Parte declaration I tried to make it clear to the court that I do not wish to alienate the father from our son. However, there have been ongoing issues, I feel, are detrimental to our son's physical safety and emotional well being. The father has also threatened to kidnap our son on many occasions and I have a restraining order on him for this reason. Our son is diagnosed with ADHD and is on medication due to a processing disorder. The father refuses to administer the medication during his visitation. Our son returns from most visitations with his dad very emotional and angry.

I want our son to have a relationship with his dad but I want it to be a healthy one. I want what is best for our child and I am at a loss as to how to help the situation at this point. Any advice is welcome.

 

[DAD10]

You prepare by showing up-however based on your story I see nothing admissible other then a pending CPS report. If DAD choses not to be at the review -he may chose to have his attorney be present. If nothing admissible is a result of the review. This Ex Parte review may very well backfire on you.

 

[breezybaby26]

Admissible evidence

As far as admissible evidence, I cannot prove that he was drunk or under the influence of anything else. We called the police but like I said he made it out of the gate before they could stop him. I plan to go tomorrow and see if there is anything that has been added recently in his criminal record that might help me prove my allegations. The other main reason that I filed Ex Parte is because he threatened to kidnap our son after he found out my husband had orders to transfer to another state. He is not a citizen of the U.S. and I he told me that his green card expired. He stated that they were trying to deport him because of his criminal record. He was jailed numerous times during our relationship for assault and battery on me and was ordered probation for three years. He also has a misdemeanor for possession of marijuana. He is a citizen of Denmark and maybe Mexico too. I have several e-mails from our son's teacher outlining how he struggles in school on Mondays due to the lack of medication during the weekend. Emotionally, our son is becoming more troubled and he is enrolled into counseling. Yes, I am afraid that this will backfire on me however, I am scared that he will take off with him or get into an accident. I am trying to ensure the safety of the child but I do not want to bash the father, only show the courts his instability. Do you know what happens when a judge sets a case for review? Can I submit anything ie. declarations for the hearing? Am I supposed to notify the father of the hearing even though I notified him of the Ex Parte?

 

[breezybaby26]

The dad does not have an attorney. I received a substitution of attorney after our recent child support hearing. When I called to verify with the father's attorney he stated that the father was going into the custody hearing pro per. The attorney also told me he had advised the father not to file a motion to modify the current custody order and that's when the father terminated his services.

 

[DAD10]

Under California Law for the purpose of an emergency EX PARTE meeting there exists certain situations were as the OP maybe notified via phone contact in lieu of being properly served- for this situation contact the Court Clerk to insure proper procedure for the review.

 

[breezybaby26]

I plan on calling the courthouse in the morning. I was just trying to see if I could get some answers now to help me sleep better. I wish things could just be simple, but I know these things normally aren't. I have tried everything I can to work with the father but it kills me to know he is only using our son to get at me or make me mad and the poor kid is the one who is starting to suffer, not me... Anyways. Every day is a fresh start so we will see. Thank you!

 

[DAD10]

what is the name of your state (only u.s. Law)? Ca

i also tried calling the father numerous times over the weekend to discuss the situation and notified him of my intent to file an ex parte motion requesting supervised visitation pending our future hearing.

herein lies non proper procedure -"intent" vs "notification of" are of vast difference.

 

[breezybaby26]

When I went to the courthouse on Monday, I followed all the procedures the clerk outlined as far as notification for Ex Parte hearings. Today at the hearing I submitted a record of my phone bill for the weekend to show that I attempted to contact the father and had left several messages. The judge said that it was sufficient. My question was in regards to the review hearing on Friday. I'm sorry if I was unclear. I definitely will call the court. I was trying to look up laws that dictate this kind of thing but I can't find anything about review hearings. I guess I'm still confused as to what that really is. I may have not done the right thing but as a parent I feel justified. If I had not taken the correct measures to protect our son and something happened, not only would I have been devastated and mad at myself, the courts would not have looked kindly on me. I knew about the dangers and threats and didn't do anything about it. If the judge does not grant my request, then at least I tried and will have to just pray that nothing bad happens. I do not wish to aggravate the situation any further which that was never my intent. If the OSC hearing is on for May still, then I will be relieved as that one is solid.

 

[LdiJ]

When I went to the courthouse on Monday, I followed all the procedures the clerk outlined as far as notification for Ex Parte hearings. Today at the hearing I submitted a record of my phone bill for the weekend to show that I attempted to contact the father and had left several messages. The judge said that it was sufficient. My question was in regards to the review hearing on Friday. I'm sorry if I was unclear. I definitely will call the court. I was trying to look up laws that dictate this kind of thing but I can't find anything about review hearings. I guess I'm still confused as to what that really is. I may have not done the right thing but as a parent I feel justified. If I had not taken the correct measures to protect our son and something happened, not only would I have been devastated and mad at myself, the courts would not have looked kindly on me. I knew about the dangers and threats and didn't do anything about it. If the judge does not grant my request, then at least I tried and will have to just pray that nothing bad happens. I do not wish to aggravate the situation any further which that was never my intent. If the OSC hearing is on for May still, then I will be relieved as that one is solid.

The reason why the judge is having a review hearing so quickly is because he is trying to give dad a chance to show up and defend himself, since he was a no show previously.

I doubt that he will attempt to make any use of the video, because I suspect that when he looks at it, sober, he will realize that it does him more harm than good.

However, I have no idea why you thought it proper to involve CPS. The child didn't go with dad therefore this isn't a CPS matter.

 

[breezybaby26]

I called CPS in case the father returned that same night and in case the judge did not grant the supervised visitation due to the fact that my evidence is questionable. If the judge actually reviews the case then he will be able to see a pattern of instability with the father. I have only filed a motion once in the last 6 years when my husband had received orders to transfer to NC. (I withdrew the motion however, as we were able to convince his command that the move would be alienating the child from his dad.) Otherwise I have been simply responding to the father's motions he files every year. With the unstable pattern, a criminal record, and supporting e-mail from the father I hope that I can do some good for our son. Am I supposed to notify the father of the hearing? Is the hearing in May still on the calendar? These are questions I need to ask the clerk. For the less important issues simply showing that it would not be wise for the child to change the custody, I really would prefer to go to mediation and try to resolve it that way. What ever is going to happen, will happen. All I hope is that the outcome is best for our son. I really am so tired of going to court every year...!

 

[breezybaby26]

Can the father use the tape? I thought it fell under entrapment laws because I did not give my consent to be taped and asked him repeatedly to please stop.

 

[Ohiogal]

Can the father use the tape? I thought it fell under entrapment laws because I did not give my consent to be taped and asked him repeatedly to please stop.

It is NOT entrapment. You also had notice that he was taping. You also had NOTICE that he was taping as you could see the video camera.

Am I supposed to notify the father of the hearing?

Yes you are supposed to properly notify father of the hearing.

Is the hearing in May still on the calendar?

Until it is cancelled it is still on the calendar. You filing an ex parte does NOT change that.

 

[Pyrotastical]

I may be completely misinformed, but as far as I know, we have some strange law (maybe not entrapment in particular) regarding consent and cameras.

I have about a five-page packet about laws regarding cameras, just from a Photo 101 class. I imagine there is far more that isn't applicable to the "art" world.

 

[Ohiogal]

I may be completely misinformed, but as far as I know, we have some strange law (maybe not entrapment in particular) regarding consent and cameras.

I have about a five-page packet about laws regarding cameras, just from a Photo 101 class. I imagine there is far more that isn't applicable to the "art" world.

California requires notice to both parties to record. She had notice as she saw the camera. It is not entrapment. She could have just closed the door if she didn't want to be recorded.

 

[breezybaby26]

In reply to the entrapment. You are right it is not entrapment. However, I know you cannot just video tape people after they have asked you to stop. Second, closing the door wouldn't have helped much as the car windows weren't tinted. I was strapping my son in and he had it in my face paparazzi style. Either way I don't care about the stupid tape. It's just the lack of respect that got me. He can't submit it anyways. I called the court today after he left me a message saying he was going to take his wasted gas money out on my truck... They told me no media is allowed in the court anymore and it would need to be professionally transcribed. Which stinks because I have alot of voicemails that would prove my case. Worse case scenario, I made the judge mad because to them I wasted their time. I didn't lie about anything so. If he doesn't show again (Which he was notified by me and the clerk) then I win by default. I have faith it will work out. Thanks for the help guys. My son is having surgery tomorrow so it's off to bed for me.