Does An Additional Motion Need To Be Filed?

[Madison31]

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

A motion was filed 2 months ago to stop parenting time until dad did 3 things.

We spent 4 hours in mediation together. We both spent one hour each in mediation without the other party. This was an "informal facilitative mediation."

Mediation did not resolve the dispute of the original motion. Therefore, mediation is over until dad attends therapy with the child and the therapist decides there is not a threat to the child. This was agreed upon by both parties. However, dad did not agree that parenting time would stop until therapist approved parenting time, which is what I asked for in my motion.

The original motion has been postponed twice because my Attorney believed dad would do what the motion asked because dad had agreed to do it. However, dad has not done any of the three things. So our motion was to finally be heard this coming up Monday.

However, my attorney informed me today that the judge has taken the motion off for Monday, and now the judge is going to schedule a "full hearing." There will be no referee before the hearing is what I was told.

Dad has not filed a motion for any parenting time or custody change. The only thing he has filed was to reduce child support on his two cases. In both cases, it was determined dad would be paying more child support than what he was paying before. He has now objected to the Friend of the Courts finding in both cases. He has 2 lawyers. One is through his work. This one is doing the child support. When she filed the motion to reduce child support, she was "unaware" of the new guidelines that started on October 1, 2008 for MI. Therefore, the judge says he will not enter another order for a FOC investigation for CS. My attorney filed a motion to have the FOC findings for CS to be implemented.

Dad has not filed any kind of motion besides for CS, only I have, and it's regarding parenting time. After dad found out CS would be increased, he again threatened to file for "full custody." He has not filed a motion though so this may just be a threat.

I know that CS and parenting time are 2 separate issues. My question is this:

Since the only motion filed is mine, is the court able to address anything else besides the specific motion I filed? Would dad have to file an additional motion if he wants a change in custody? Would I have to file an additional motion to change joint legal to sole legal? I already have primary physical.

Please tell me if I need to clarify.

Thank you.

 

[Madison31]

Will somebody point me in the right direction to find the answers to some of these questions?

 

[Ronin]

You should be directing these questions to your attorney, who knows this case better than can be properly explained, much less replied to, here.

That said, it seems as though there is already a court order in place setting a visitation schedule for the father. You want to modify this so it is contingent upon father meeting your own conditions.

The father was not obligated to comply with your conditions or mediate this dispute outside of court. He was at least willing to sit down for four hours and attempt to mediate this.

The father has every right to refuse to reduce his parenting time based on your whims or filed motions. If you interfere with this right without court approval, you could be subject to contempt, or at the very least be seen by the court as acting in bad faith toward the father.

You opened the door for a hearing with your motion, and the judge has now decided to make it a full hearing. The judge will have a lot of discretion to revisit your case to the extent that he or she wishes.

Having a hearing based upon motions to stop the fathers visitation completely and requesting sole conservatorship is pretty aggressive, and may very well bite you in the rear at the hearing.

 

[Madison31]

You should be directing these questions to your attorney, who knows this case better than can be properly explained, much less replied to, here.

That said, it seems as though there is already a court order in place setting a visitation schedule for the father. You want to modify this so it is contingent upon father meeting your own conditions.

The father was not obligated to comply with your conditions or mediate this dispute outside of court. He was at least willing to sit down for four hours and attempt to mediate this.

The father has every right to refuse to reduce his parenting time based on your whims or filed motions. If you interfere with this right without court approval, you could be subject to contempt, or at the very least be seen by the court as acting in bad faith toward the father.

You opened the door for a hearing with your motion, and the judge has now decided to make it a full hearing. The judge will have a lot of discretion to revisit your case to the extent that he or she wishes.

Having a hearing based upon motions to stop the fathers visitation completely and requesting sole conservatorship is pretty aggressive, and may very well bite you in the rear at the hearing.

Thank you for responding.

A hearing is good because the truth will come out.

I have not requested "sole conservatorship." I asked in this forum if anything else than my motion would be discussed at the hearing. But yes....I am thinking sole legal at this point because dad has not taken child to any doctors, dentists, therapy appointments ever, or even spoken to any of them for that matter. Oh...indeed i forget. He did speak with the tdoc after i filed the motion. But he refused any counseling with our son.

He didn't even call the doctor when our son fell down dad's basement cement steps 2 weeks ago which resulted in bruising and abrasions in which I took son to ER after speaking with the Pediatrician and her sending me to ER.

Yes, I know he was not obligated to agree with my motion during mediation. Just as I wasn't obligated to agree to his request to add time to his parenting time when he has only practiced 40% of his parenting time in the last 6 years. Yes....I have records and witnesses to this.

I do not feel comfortable defying a court order. It scares the crap out of me actually. But the reason for filing the motion in the first place was and still is out of concern for our son's safety. It doesn't make it any easier either when dad's family is telling me not to send our son with dad because they feel "his wife could severely hurt him."

I am aware that not sending our son may in fact make me look vindictive. I have relayed this to my attorney. But how will I look to the judge if I do send our son while even dad's own family have safety concerns? Wouldn't that make me neglecful? Couldn't I get in "trouble" or look bad to the judge if I had all these concerns, yet I sent our son with dad anyway? I really don't know what to do. It's been almost 3 months since I filed the motion.

 

[LdiJ]

Thank you for responding.

A hearing is good because the truth will come out.

I have not requested "sole conservatorship." I asked in this forum if anything else than my motion would be discussed at the hearing. But yes....I am thinking sole legal at this point because dad has not taken child to any doctors, dentists, therapy appointments ever, or even spoken to any of them for that matter. Oh...indeed i forget. He did speak with the tdoc after i filed the motion. But he refused any counseling with our son.

He didn't even call the doctor when our son fell down dad's basement cement steps 2 weeks ago which resulted in bruising and abrasions in which I took son to ER after speaking with the Pediatrician and her sending me to ER.

Yes, I know he was not obligated to agree with my motion during mediation. Just as I wasn't obligated to agree to his request to add time to his parenting time when he has only practiced 40% of his parenting time in the last 6 years. Yes....I have records and witnesses to this.

I do not feel comfortable defying a court order. It scares the crap out of me actually. But the reason for filing the motion in the first place was and still is out of concern for our son's safety. It doesn't make it any easier either when dad's family is telling me not to send our son with dad because they feel "his wife could severely hurt him."

I am aware that not sending our son may in fact make me look vindictive. I have relayed this to my attorney. But how will I look to the judge if I do send our son while even dad's own family have safety concerns? Wouldn't that make me neglecful? Couldn't I get in "trouble" or look bad to the judge if I had all these concerns, yet I sent our son with dad anyway? I really don't know what to do. It's been almost 3 months since I filed the motion.

I think that you should probably do whatever your attorney tells you that you should do.

However, if my ex's own family told me that they were scared that his girlfriend would severely hurt our child, I would probably risk the contempt. However, that is just what I would do.

 

[Ronin]

Thank you for responding.

A hearing is good because the truth will come out.

I have not requested "sole conservatorship." I asked in this forum if anything else than my motion would be discussed at the hearing. But yes....I am thinking sole legal at this point because dad has not taken child to any doctors, dentists, therapy appointments ever, or even spoken to any of them for that matter. Oh...indeed i forget. He did speak with the tdoc after i filed the motion. But he refused any counseling with our son.

He didn't even call the doctor when our son fell down dad's basement cement steps 2 weeks ago which resulted in bruising and abrasions in which I took son to ER after speaking with the Pediatrician and her sending me to ER.

Yes, I know he was not obligated to agree with my motion during mediation. Just as I wasn't obligated to agree to his request to add time to his parenting time when he has only practiced 40% of his parenting time in the last 6 years. Yes....I have records and witnesses to this.

I do not feel comfortable defying a court order. It scares the crap out of me actually. But the reason for filing the motion in the first place was and still is out of concern for our son's safety. It doesn't make it any easier either when dad's family is telling me not to send our son with dad because they feel "his wife could severely hurt him."

I am aware that not sending our son may in fact make me look vindictive. I have relayed this to my attorney. But how will I look to the judge if I do send our son while even dad's own family have safety concerns? Wouldn't that make me neglecful? Couldn't I get in "trouble" or look bad to the judge if I had all these concerns, yet I sent our son with dad anyway? I really don't know what to do. It's been almost 3 months since I filed the motion.

Unless taking your child to the ER after your ex did not resulted in treatment for injuries more serious than the “bruising and abrasions” you stated, his failure to take the child to the ER will not carry as much weight in court as you think. Been there…

Some of your fears are based upon what other people have told you, which may very well be valid. However, any statements you make in court about what others have told you about someone else will be challenged as hearsay. The best defense to that is to have whoever made the statements testify in court, which may not be easy if these folks are part of the fathers family.

It is generally the custodial parents obligation to take the kids to doctors and dentists and such. Goes with the job. That is unless you have some kind of split custody arrangement that would put things on a more level playing field for sharing such responsibilities.

You will have the burden to prove the father should have his legally presumptive rights of access and possession of his child restricted or denied by the court.

From what you have said, unless the judge has come down hard on the father in the past and was previously inclined to restrict custody, it does not seem very likely that you will prevail on what you are asking for. However, the hearing will have the benefit of openly airing your parental concerns in the right forum. Hopefully the judge will address these fairly and make some recommendations or order some adjustments to best fit your situation.

 

[Madison31]

Thank you both for responding.

There are three people from his immediate family that have already volunteered to testify on my behalf, and to all the things they have told me and have personally witnessed. Dad's own father told me that if I were to agree to stop all child support, dad would surrender his parental rights because dad does not want to be in our son's life anyway. This thought had never entered my mind. But even dad's own father believes his son is "irresponsible" and "neglectful." He even said dad's wife is "worse than those women you see on TV who kill their own kids." So when I have dad's own family telling me these things, along with what I have personally witnessed, it scares me.

We have joint legal custody. The court order does not elaborate on this fact. I do not mind taking our son to all of his appointments. I am his mom. Our son's Pediatrician would not see our son regarding the fall. She directed me to go to ER for x-rays. Nothing was broken.

I was told by the Friend of the Court that I could request that the judge order dad's parenting time to reflect the actual time dad has exercised his parenting time. Or that I could ask for supervised visitation. I have came up with proposals to both requests, however, I do not know what the judge will determine appropriate regarding visitation. I am preparing myself for anything.

Dad told the mediator two weeks ago that he(dad) was calling that Monday to set up an appointment with the psychologist. Dad left a message for me today asking about our son's schedule this week because dad was going to make an appointment. Dad has not made one yet and it takes 2-3 weeks to get into see the psychologist. Dad already knows this because I have been trying to get dad to see the psychologist with our son for two years, yet dad has refused.

 

[LdiJ]

Thank you both for responding.

There are three people from his immediate family that have already volunteered to testify on my behalf, and to all the things they have told me and have personally witnessed. Dad's own father told me that if I were to agree to stop all child support, dad would surrender his parental rights because dad does not want to be in our son's life anyway. This thought had never entered my mind. But even dad's own father believes his son is "irresponsible" and "neglectful." He even said dad's wife is "worse than those women you see on TV who kill their own kids." So when I have dad's own family telling me these things, along with what I have personally witnessed, it scares me.

We have joint legal custody. The court order does not elaborate on this fact. I do not mind taking our son to all of his appointments. I am his mom. Our son's Pediatrician would not see our son regarding the fall. She directed me to go to ER for x-rays. Nothing was broken.

I was told by the Friend of the Court that I could request that the judge order dad's parenting time to reflect the actual time dad has exercised his parenting time. Or that I could ask for supervised visitation. I have came up with proposals to both requests, however, I do not know what the judge will determine appropriate regarding visitation. I am preparing myself for anything.

Dad told the mediator two weeks ago that he(dad) was calling that Monday to set up an appointment with the psychologist. Dad left a message for me today asking about our son's schedule this week because dad was going to make an appointment. Dad has not made one yet and it takes 2-3 weeks to get into see the psychologist. Dad already knows this because I have been trying to get dad to see the psychologist with our son for two years, yet dad has refused.

It sounds like dad's family is very trustworthy. You might consider the option of supervised visitation with dad's parents or father being the supervisor.

If members of dad's family are willing to testify for you, that's very telling.

 

[Madison31]

Dad's mom, stepmom, and sister all offered to do the supervised visitation already. We have even discussed times and transportation. I have a proposal already written up.