Can you appeal a dismissal?

[skale7179]

Im from Illinois.

I went to court today on a rule to show cause against my ex-husband. He had been ordered not to drink alcohol 24 hrs. prior to getting the children for visitation and has.

He had a lawyer today and I did not...mistake I now know! My only evidence was a police report that was filed the day he showed up to get the kids and had been drinking. His lawyer objected to it being submitted as evidence and her objection was granted due to the fact that the police report was considered "hear say"

The case was dismissed.

My question is if I hire a lawyer to represent me on this matter, can the dismissal be appealed?

Thanks!

 

[casa]

Im from Illinois.

I went to court today on a rule to show cause against my ex-husband. He had been ordered not to drink alcohol 24 hrs. prior to getting the children for visitation and has.

He had a lawyer today and I did not...mistake I now know! My only evidence was a police report that was filed the day he showed up to get the kids and had been drinking. His lawyer objected to it being submitted as evidence and her objection was granted due to the fact that the police report was considered "hear say"

The case was dismissed.

My question is if I hire a lawyer to represent me on this matter, can the dismissal be appealed?

Thanks!

You can always bring matters like this back to court. You learned the hard way why you must have an attorney if your X does.

Meantime, continue to contact police any/every time he shows up under the influence. Collect them and bring them all to court with an attorney who will point out to the judge that the X is in contempt of court order and your child is at risk.

 

[skale7179]

Thanks for your reply casa.....I contacted an attorney today

 

[betterthanher]

Thanks for your reply casa.....I contacted an attorney today

A lawyer will probably not have any luck, either. You filed a police REPORT. Was there a breathalyzer test to back-up your report? If not, then it is just that -- hearsay.

Your ex can file a police report claiming you were bonging it up prior to dropping the kids off. See where I am going with this?

 

[skale7179]

Yes, a breathalyzer test was done and the results are included in the police report.

 

[betterthanher]

Yes, a breathalyzer test was done and the results are included in the police report.

And what did the results of the breathalyzer state? Any results of alcohol? Over the legal limit?

Pretty interesting that a factor like this is in an order. Talk about controlling. Unless the ex is a recovering alcoholic.

 

[casa]

And what did the results of the breathalyzer state? Any results of alcohol? Over the legal limit?

Pretty interesting that a factor like this is in an order. Talk about controlling. Unless the ex is a recovering alcoholic.

I disagree...there are many states (mine being one of them) where it is routinely stated in court orders that neither parent is to be under the influence or drinking alcohol within a certain time frame surrounding visitation...especially if one/both of the parties claim alcohol abuse in the original proceedings.

 

[casa]

A lawyer will probably not have any luck, either. You filed a police REPORT. Was there a breathalyzer test to back-up your report? If not, then it is just that -- hearsay.

Your ex can file a police report claiming you were bonging it up prior to dropping the kids off. See where I am going with this?

My friend had a similar situation...X obviously had been drinking- even admitted to drinking that 'day', but a breathalyzer put them 'under the legal limit'. The judge did not accept that the X was "intoxicated"...She, however, hired an attorney & took it back to court~ since the court order stated not to consume alcohol at all during/before parenting time...She won. The only difference was she was pro se the first time, and represented by an attorney the second time.

 

[skale7179]

Yes, there were results of alcohol use, not over the legal limit but that isnt a factor, he was ordered not to drink at all 24 hrs prior to getting the children.

 

[CJane]

I disagree...there are many states (mine being one of them) where it is routinely stated in court orders that neither parent is to be under the influence or drinking alcohol within a certain time frame surrounding visitation...

Really? That astounds me. Not that I'm a lush or anything, but how does that work as far as a glass of wine now and then when the kids are in your care? Couldn't a really nuttyX use communion in church if the order states NO alcohol?

I would have thought this would only ever be included if serious alcoholism could be proven.

 

[casa]

Really? That astounds me. Not that I'm a lush or anything, but how does that work as far as a glass of wine now and then when the kids are in your care? Couldn't a really nuttyX use communion in church if the order states NO alcohol?

I would have thought this would only ever be included if serious alcoholism could be proven.

There are sooooooo many allegations that spring up in custody issues..."Your honor, she/he drinks &/or uses drugs!"...so without proof of any alcoholism or addiction- the court just states the parent is not to drink alcohol within X hours of visitation. Of course common sense rules the day- so church communion or a glass of wine @ the holidays wouldn't necessarily count.

 

[rmet4nzkx]

Im from Illinois.

I went to court today on a rule to show cause against my ex-husband. He had been ordered not to drink alcohol 24 hrs. prior to getting the children for visitation and has.

He had a lawyer today and I did not...mistake I now know! My only evidence was a police report that was filed the day he showed up to get the kids and had been drinking. His lawyer objected to it being submitted as evidence and her objection was granted due to the fact that the police report was considered "hear say"

The case was dismissed.

My question is if I hire a lawyer to represent me on this matter, can the dismissal be appealed?

Thanks!

1. Did you report him drinking to the police?
2. Did they observe him under the influence of alcohol?
3. Did they note a BAC reading?
4. Did they do a FST?
If your answer is yes to #1 and no to #'s 2-4, then it is hearsay and the advantage of having an attorney would be that your attorney would advise you that it was hearsay and not admissable. Then you would have saved the trip to court. Did they make you pay his attorney's fees? So far there are no grounds for appeal.

 

[casa]

1. Did you report him drinking to the police?
2. Did they observe him under the influence of alcohol?
3. Did they note a BAC reading?
4. Did they do a FST?
If your answer is yes to #1 and no to #'s 2-4, then it is hearsay and the advantage of having an attorney would be that your attorney would advise you that it was hearsay and not admissable. Then you would have saved the trip to court. Did they make you pay his attorney's fees? So far there are no grounds for appeal.

What? rmet~ The court order states he is not to drink alcohol within 24 hours of visitation~ He was under the influence, she contacted police- a report was filed (& he admitted he had been drinking that day)....how is that NOT contempt of the court order re; drinking?

 

[skale7179]

1. Did you report him drinking to the police?
2. Did they observe him under the influence of alcohol?
3. Did they note a BAC reading?
4. Did they do a FST?
If your answer is yes to #1 and no to #'s 2-4, then it is hearsay and the advantage of having an attorney would be that your attorney would advise you that it was hearsay and not admissable. Then you would have saved the trip to court. Did they make you pay his attorney's fees? So far there are no grounds for appeal.

1. yes
2. he wasnt stumbling and falling....but the officers that came are the ones who administered the breathalyzer and he also admitted to drinking to them which is also noted in the report.
3. yes, it is noted in the report.
4. nothing is noted in the report about a fst.

 

[ceara19]

What was the reasoning behind the judge agreeing to the no alcohol stipulation in the first place?
Does he have a history of alcohol abuse?
And does the CO only state no alcohol 24 hours prior to picking up the children ONLY or does it go on to state no drinking during the times that he has the children also?