Modification Question

[chipmunk226]

Hopefully you can file an emergency hearing before his next weekend as you have stated. But if not, common sense would tell anyone that if you have DOCUMENTATION from the pediatricians of your childs acute allergy to the animals, you are not going to LOSE custody of an instance or two of not letting your child go to dads until it is resolved. Come on now, guys, why try to scare the crap out of her??? You think a judge is going to REVERSE custody because she doesnt want her child to be extremely ill on the weekends he is with his father???? The kid is on all kinds of medication and she has info from the doctors. Common sense prevails. Plus dad sounds like a complete idiot anyway after filing contempt when she was in labor and getting admonished by the judge--he may not even file anything.... but if he did, well she is prepared. I'd say "bring it"!

thanks j but i'm not scared

@GrowUp! I understand your concern and I do appreciate that you want to prepare everyone for the worst case. I am not going to lose custody of my son to his father. Especially when his family member [his minor nephew] was just convicted of sexually assaulting my son. For a long time, I was bitter and this whole custody thing was about retribution, even though I wouldn't admit it. But I have 'grown up' and to use your phrase, give a rats' backside about his father and what he does with his life as long as it doesn't harm my son.

This is NOT a ploy to get my son away from his father, it's to keep him healthy. I am not sure if you know about asthma, but it is no joke and a kid and crash and burn in a matter of minutes. My son being exposed to cats is like giving a diabetic a sugar high. It can be deadly. If this was a ploy, I would have kept him a soon as I found out he had cats, but I have given him ample documentation and chances if you will to rectify this without using the courts. If I get chastised for keeping my son when he could be exposed to something that could potentially KILL him, I will be sure to appeal

We don't give a rats' backside what you agree or disagree with.

Oh you bet your kids you MUST send him. The COURT -- NOT YOU -- will decide if it's a harmful environment or not. You have to prove your son is in danger. Those are BOTH very steep hills to climb. It's not a matter of simply walking into court. I highly doubt the court order stipulates such a "right."

Ok, so because my CO is in a county where it can literally take 3 months to get a court date, I should subject my son to a harmful environment until they have time to hear me? Or wait until he is admitted to the hospital or even worse, dead??? I don't think so.

Well, that's yours -- along with many other CP's problem. YOU do not know what the "best interest" is. The court dictates that because each parent is biased in what THEY see and have something to gain. You are going through the proper channels, but I am telling you -- as did an ACTUAL Attorney (and that's NOT Jbowman ), until a court decides otherwise, you ARE ORDERED to send the child. A court order is NOT a suggestion.

Why don't I know what's in my son's best interest? Please don't insult my intelligence or any other CP. I understand that a lot of parents have clouded judgment, I was one of the. But have some faith that there are some good natured people out there that sacrifice and do what the need to for their children Maybe you shouldn't be so biased.

Also, be prepared it *could* be a possibility that the court could not see it worthy as an ex-parte and could schedule it for a hearing in the future.

Your absolutely right but I doubt it.

No, it's not. You are not the court or a Judge. You do not possess the legal right or authority to supercede a court order. Doing so does not go any good for your cause/case.

If my son's father house burned down and he was living out of his car, I should still send my son? Like J said, I know the courts expect parents to have some degree common sense. Otherwise the courts would be more flooded and overwrought with frivolous and unnecessary claims.

No, you do not fully understand at all. You are subject to the COURT ORDER.

Just because I don't agree with you doesn't mean I don't understand.

You can disagree all you want about superseding the order but what you feel is dangerous or harmful may not be what the court sees as such and if the court believes that you are wilfully violating the order you will be found in contempt. Which could lead to you losing custody.

And that's the key word, willfully. I am not keeping my son for any other benefit but his own.

Thank to you all for your responses!

 

[GrowUp!]

Why don't I know what's in my son's best interest? Please don't insult my intelligence or any other CP.

What YOU **think** might be the child's best interest might not be seen the same way as the Court. That is what you are not getting. "The best interest of the child" is a LEGAL DETERMINATION made by the courts -- not the parents. You think that going for a suspension of parenting time and the child not seeing his Father is in the best interest. I'd bet that a Judge will not agree with you on that aspect. If you expect to successfully get something accomplished, then you should probably aim for some restrictions -- not for a suspension of parenting time. That is another VERY STEEP hill. It's up there with going for parental unfitness.

If my son's father house burned down and he was living out of his car, I should still send my son?

Yes, you would still be required. A court will not suspend one's parenting time because of a house burning down (unless it was set intentionally with the child inside or something that extreme). They can stay at a hotel or with family, for example. You're not getting it when it comes to **parenting time.**

I am not keeping my son for any other benefit but his own.

Which, for the umpteenth time, you need to PROVE to the court. You need to prove that a suspension of parenting time -- not seeing his father -- is for the child's benefit. You can't prove it. That bar is set very, very high.

Ok, so because my CO is in a county where it can literally take 3 months to get a court date, I should subject my son to a harmful environment until they have time to hear me? Or wait until he is admitted to the hospital or even worse, dead??? I don't think so.

All courts are backed up. And yes...if your court, **by chance**, does not hear your ex-parte motion, then you have no choice than to continue to send the child. Then what are you going to do if the court rejects your motion and schedules it for a hearing at a later date? Not send the child? If you did that, you'd be in for world of hurt because nothing ticks off a judge more than when a parent KNOWINGLY disregards an order because they did not agree with the decision.

LdiJ and I believe a couple of others told you what you should do. Again, if you are going for total suspension, don't expect to be successful (if you are, I'd be surprised and personally can see it being appealed). Be realistic and focus on what the problem is. And the problem is NOT the child seeing his Dad. The problem is the child's allergies to the cats -- so put your focus on that and what needs to be done -- for both parents -- to ensure the child remains healthy. Get **detailed** suggestions from doctor(s) -- directly in writing -- what BOTH parents needs to have done and have that put into an order effective immediately, for example. Then, if Dad does not do that, then that opens up him being hauled into court for contempt and further restrictions. See what this is all about...especially since you admitted that you are doing this on your own.

 

[tylersmom]

I haven't posted on this forum for a while, but I used to quite a bit. I didn't always like the advice I was given regarding custody and how to handle issues with my ex husband. I did, after arguing with several people here, decide to take what they said into consideration. I'm am now involved in a custody and child support dispute with my ex. Because I did listen to these guys here and take into consideration their sometimes harsh advice, the courts are looking very favorably upon me. I'm only telling you this because I can see and understand your frustrations, and I know how difficult it is to read what these guys here have to say. But most of them, NOT ALL, know what they are talking about. It may be hard to do, but you have to follow the court order. I understand wanting to protect your son, we all want to protect our kids, but don't do anything that will reflect badly on you with the courts.

 

[chipmunk226]

LdiJ and I believe a couple of others told you what you should do. Again, if you are going for total suspension, don't expect to be successful (if you are, I'd be surprised and personally can see it being appealed). Be realistic and focus on what the problem is. And the problem is NOT the child seeing his Dad. The problem is the child's allergies to the cats -- so put your focus on that and what needs to be done -- for both parents -- to ensure the child remains healthy. Get **detailed** suggestions from doctor(s) -- directly in writing -- what BOTH parents needs to have done and have that put into an order effective immediately, for example. Then, if Dad does not do that, then that opens up him being hauled into court for contempt and further restrictions. See what this is all about...especially since you admitted that you are doing this on your own.

Ok, maybe I was unclear. I am not trying to suspend the father's visitation indefinitely. I may or may not be getting a lawyer at this point. There are a lot of other issues involved, but I only posted on what would be included in the emergency petition.

I do have documentation from his ENT but that's about 18 month old that says that my son has a severe allergy to cats and to keep them out of his room; the discharge sheet from the ER that says that my son should avoid being around cats; and a written note from his doctor stating he should be kept away from cats. There is nothing I need to do, other then give my son his meds because he is not exposed to cats in my home.

My request for the emergency petition will include my request that his visitation be suspended until further notice from the court. I did the same when his father had the cousin that assaulted my son over his house while my son was there They granted it and then ordered him to appear. His visitation was reinstated and we moved on, but not after he got a stern talking to, again, and the master wrote in plain english for his father to understand that my son is to never have contact with the cousins in question EVER.

I am doing what I can to get an order from the court to not send him his next weekend. Of course it would be best if I have a judge / master give me the okay. I will be discussing my situation in length with an attorney this evening, and I will give you all an update

Thanks again!

 

[CJane]

I do have documentation from his ENT but that's about 18 month old that says that my son has a severe allergy to cats and to keep them out of his room; the discharge sheet from the ER that says that my son should avoid being around cats; and a written note from his doctor stating he should be kept away from cats. There is nothing I need to do, other then give my son his meds because he is not exposed to cats in my home.

Honestly, I don't think you're all that likely to prevail on this issue. Please let us know how it turns out.

I know that in similar cases I've read about or been a tangential witness to, the parent attempting to suspend visitation for asthma or allergy related issues did not prevail. These were cases where the NCP smoked, but still were quite similar to what you're alleging.

Here is why the visitation was not suspended:

The parent requesting the suspension was unable to prove to the court that the allergen was the ONLY DIRECT cause of the asthma or allergy attack. You already stated that your child has other allergies - any one of them could have triggered an asthma attack. And, I have to assume that if he's on so many meds, it's because he has various, non-specific allergies and has had asthma attacks or allergy attacks in your home.

Also, the doctor said that the cats should be kept out of the child's room, that the child should avoid being around cats and that the child should have 'no contact' with cats. That's 3 varying recommendations from 3 different doctors that are intimately familiar with your child's condition and history. If the father keeps the cats out of the child's room, he's FOLLOWING DOCTOR'S ORDERS... and cannot be penalized for that.

You're going to have to work very hard to prove to the court that the cats cause the attacks, which is very different from the cats contributing to attacks that may have been triggered by any one of 1000 other allergens your child is exposed to.

You'll probably be expected to testify as to whether or not your child is EVER exposed to cats elsewhere - friend's houses, relatives homes, stray cats in the neighborhood, teachers with cats who may bring hair into the classroom with them, etc. The court isn't going to expect your son to live in a controlled environment.

Again, let us know how it goes, but while you may get your emergency petition granted, I wouldn't anticipate prevailing on this one long term without PROOF. And you just don't have PROOF.

 

[chipmunk226]

Update

Here is why the visitation was not suspended:

The parent requesting the suspension was unable to prove to the court that the allergen was the ONLY DIRECT cause of the asthma or allergy attack. You already stated that your child has other allergies - any one of them could have triggered an asthma attack. And, I have to assume that if he's on so many meds, it's because he has various, non-specific allergies and has had asthma attacks or allergy attacks in your home.

The test my son had was for 22 allergens ranging from animals to grasses to trees to roaches. The reaction we on a scale of 0 - V [0-5]. with the exception of two others, dog dander and a type of mite, he scored a zero. He was mid range of class I for the dog and the mite. But for cat hair he scored a V the highest and most severe class.

I have scheduled another appointment with the ENT to have him retested on May 9. Maybe there is a test to include more allergens, HOWEVER, to most docs, this would show them the cause. Other than us living in two different states [and his father lives in a large metropolis] the only difference in our homes is the cats.

His father claims that this is the result of my son running around and riding his bike. My son runs and plays outside on a regular basis here and as long as he has taken whatever allergy med his was on at the time he was always fine.

Also, the doctor said that the cats should be kept out of the child's room, that the child should avoid being around cats and that the child should have 'no contact' with cats. That's 3 varying recommendations from 3 different doctors that are intimately familiar with your child's condition and history. If the father keeps the cats out of the child's room, he's FOLLOWING DOCTOR'S ORDERS... and cannot be penalized for that.

The recommendation to keep the cat out of the room was first, in 2005. But that has shown not to be enough since he's had a full blown attack. Either A, his father isn't really keeping the cat out or B, the allergy is so severe that it's not enough. That's why the ER and PCP wrote notes to say otherwise.

You're going to have to work very hard to prove to the court that the cats cause the attacks, which is very different from the cats contributing to attacks that may have been triggered by any one of 1000 other allergens your child is exposed to.

You'll probably be expected to testify as to whether or not your child is EVER exposed to cats elsewhere - friend's houses, relatives homes, stray cats in the neighborhood, teachers with cats who may bring hair into the classroom with them, etc. The court isn't going to expect your son to live in a controlled environment.

My parents removed their cats from their home in early march [coincidently about week before I found out that his dad had gotten two new cats.] My son would only spend no more then an hour at my parents before dropped off at his dads and that only happened on occasion. But they did notice that they had an effect on him, so they made the decision to find them a new home. Thankfully they kept their receipt that they relinquished their two cats.

My son's best friend lives next door, and they have a cat, but my son and the child's mother know that my son is not allowed in their home because of the cat and he has not been in their home since they got the cat. And since the whole incident that came about with his cousin, I do not allow my son over friends house if I am not there. We live in a suburban / rural area and surprisingly don't have a stray cat problem. And of course there are kids in his class that have cats, BUT these symptoms are at their worse after coming home from his fathers. My son has never come home from school complaining of discomfort. No one in my or his father's household smokes.

Again, let us know how it goes, but while you may get your emergency petition granted, I wouldn't anticipate prevailing on this one long term without PROOF. And you just don't have PROOF.

According to the lawyer I have now retained [I realized that this is too big of an issue for me to attempt on my own] this is an issue for expedited, not emergency relief [go ahead GrowUp! and Ohiogal, you can say I told you so ] I WILL have to send him for his next visit but thanks to you two, I was prepared for that result I'm no longer in denial I will be sure to send all his meds to his father and make sure I even have an extra inhaler and a copy of his medical card to stay with my parents since they help me out on the transportation of my son. Matter of fact, I will probably make it a point to be the one picking him up myself next week.

The lawyer specializes in family law and custody and has been for over 33 years. We spoke at length tonight and thinks with the medical records and correspondence that I have, I have a good shot of suspending his visitation until his father shows proof that he 1 has removed the cats and 2 has had his home professionally cleaned to remove the allergens from the cats. It will also be asked to be put in the order that his father is to never allow cats in his home again.

Along with the medical records for my son, I have email correspondence showing the difficulty of communication and the lack of cooperation from his father. This also will play a HUGE part in this case. I have emails from at least June 2005 where I have asked his father to limit Eli's exposure to cats and he has out right denied. His father, however, will have no proof to counter anything that I have medically because he does not take my son to the doctor.

The lawyer is seasoned and I am confident that I know what he's doing I am confident in the fact that he feels that I have enough to move forward because otherwise, he wouldn't have taken the case. He was referred to me by a close family friend that used his services, so I don't think he would BS me just to get another case. He also is a flat rate lawyer, no extra charge for calls to him anytime, even after hours. He explains exactly what he's going to do and how expects this to play out.

In the county that I have to file, they only take expedited requests on Monday and then the hearing is usually 2 Fridays after. He said this is a pretty new system they have in place, and that it has been working well.

I just know that my son's father is going to absolutely FLIP and I am POSITIVE he will try to tack on all types of bogus allegations to bog down our case and to make the courts frustrated and take the focus off of him. Hopefully it will backfire, but I know I have a long road ahead. He does not go down quietly I also am concerned for my son, because every time something court related comes up, my son gets and earful and he's only 7

Thanks again for everyone's responses and taking the time to give your .02 I will be sure to keep you all updated on what happens from here on out. I am so thankful that I found this site

 

[Ohiogal]

The test my son had was for 22 allergens ranging from animals to grasses to trees to roaches. The reaction we on a scale of 0 - V [0-5]. with the exception of two others, dog dander and a type of mite, he scored a zero. He was mid range of class I for the dog and the mite. But for cat hair he scored a V the highest and most severe class.

Okay.

I have scheduled another appointment with the ENT to have him retested on May 9. Maybe there is a test to include more allergens, HOWEVER, to most docs, this would show them the cause. Other than us living in two different states [and his father lives in a large metropolis] the only difference in our homes is the cats.

Okay.

His father claims that this is the result of my son running around and riding his bike. My son runs and plays outside on a regular basis here and as long as he has taken whatever allergy med his was on at the time he was always fine.

It could be a combination of factors. I am not disputing the cats. But stating that cats in combination with activity and his other allergens could be causing the severe reaction.

The recommendation to keep the cat out of the room was first, in 2005. But that has shown not to be enough since he's had a full blown attack. Either A, his father isn't really keeping the cat out or B, the allergy is so severe that it's not enough. That's why the ER and PCP wrote notes to say otherwise.

I don't recall but you have given dad copies of all of these notes correct? And not just told him?

According to the lawyer I have now retained [I realized that this is too big of an issue for me to attempt on my own] this is an issue for expedited, not emergency relief [go ahead GrowUp! and Ohiogal, you can say I told you so ]

You will have a hearing. But it won't be immediate.

I WILL have to send him for his next visit but thanks to you two, I was prepared for that result I'm no longer in denial

Good. Not obeying the court order would be contempt.

I will be sure to send all his meds to his father and make sure I even have an extra inhaler and a copy of his medical card to stay with my parents since they help me out on the transportation of my son. Matter of fact, I will probably make it a point to be the one picking him up myself next week.

His dad should also have a copy of his medical card. And an inhaler.

The lawyer specializes in family law and custody and has been for over 33 years. We spoke at length tonight and thinks with the medical records and correspondence that I have, I have a good shot of suspending his visitation until his father shows proof that he 1 has removed the cats and 2 has had his home professionally cleaned to remove the allergens from the cats. It will also be asked to be put in the order that his father is to never allow cats in his home again.

You can do that. But having a good shot is NOT a guarantee. Be prepared for that. Your lawyer cannot guarantee that that is going to be the outcome. I don't care how many years he has been practicing. I practice family law and custody as well but that does not mean I can ever guarantee my clients anything.

Along with the medical records for my son, I have email correspondence showing the difficulty of communication and the lack of cooperation from his father. This also will play a HUGE part in this case. I have emails from at least June 2005 where I have asked his father to limit Eli's exposure to cats and he has out right denied. His father, however, will have no proof to counter anything that I have medically because he does not take my son to the doctor.

Those may not be as important as you think -- the emails that is.

The lawyer is seasoned and I am confident that I know what he's doing I am confident in the fact that he feels that I have enough to move forward because otherwise, he wouldn't have taken the case. He was referred to me by a close family friend that used his services, so I don't think he would BS me just to get another case. He also is a flat rate lawyer, no extra charge for calls to him anytime, even after hours. He explains exactly what he's going to do and how expects this to play out.

That is cool.

In the county that I have to file, they only take expedited requests on Monday and then the hearing is usually 2 Fridays after. He said this is a pretty new system they have in place, and that it has been working well.

I just know that my son's father is going to absolutely FLIP and I am POSITIVE he will try to tack on all types of bogus allegations to bog down our case and to make the courts frustrated and take the focus off of him. Hopefully it will backfire, but I know I have a long road ahead. He does not go down quietly I also am concerned for my son, because every time something court related comes up, my son gets and earful and he's only 7

Good on the expedited hearing. Ask that the judge put a gag order on the parties to prohibit any communication between the parties and the child regarding the court. Do that in the initial paperwork.

Thanks again for everyone's responses and taking the time to give your .02 I will be sure to keep you all updated on what happens from here on out. I am so thankful that I found this site

You are welcome.

 

[GrowUp!]

The lawyer specializes in family law and custody and has been for over 33 years. We spoke at length tonight and thinks with the medical records and correspondence that I have, I have a good shot of suspending his visitation until his father shows proof that he 1 has removed the cats and 2 has had his home professionally cleaned to remove the allergens from the cats. It will also be asked to be put in the order that his father is to never allow cats in his home again.

I will also point out that how long he has been practicing is irrelevant. While it might put you at ease, it does not guarantee victory or puts you at an advantage. Again, I really think you going after visitation suspension from the get-go is the wrong route if you really want to accomplish want you want. I would go more for the kid not being able to be at the house until such time (with a date included) that (this that and the other thing has been completed and submitted for proof). If it's not completed, then parenting time is suspended...plus that could bring contempt charges possible. You're trying to put forward that you still want the child and father to spend their time together BUT you have concerns for the child's health (allergies)...See the thinking here?? Feel free to ask your attorney about thinking along those lines.

Keep mind that cats have dander, so it might take a looooong time to get rid of it, if possible.

Along with the medical records for my son, I have email correspondence showing the difficulty of communication and the lack of cooperation from his father. This also will play a HUGE part in this case. I have emails from at least June 2005 where I have asked his father to limit Eli's exposure to cats and he has out right denied. His father, however, will have no proof to counter anything that I have medically because he does not take my son to the doctor.

As pointed out, the emails might or might not be able to be used. I see one problem with those that I would argue -- if this has been a problem since June 2005, why has it taken you two years to address this with the court? Don't be surprised if the Judge questions is and/or that is a reason why the suspension of parenting time is denied. Also, did you provide detailed med. info to Dad about the child's problem and what needed to be done? What proof of that do you have that you provided him w/it? Just tossing out scenarios -- you need to be thinking of this stuff...but the 2 years this has been a problem could pose a problem for you.

The lawyer is seasoned and I am confident that I know what he's doing I am confident in the fact that he feels that I have enough to move forward because otherwise, he wouldn't have taken the case.

While (the bolded) might be HIS policy, it's not for everyone. Again, just because he's seasoned does not mean it's a slam-dunk. That's great your lawyer "feels" like you have enough, but you don't know what the other party will argue and/or present that could hurt it.

He was referred to me by a close family friend that used his services, so I don't think he would BS me just to get another case. He also is a flat rate lawyer, no extra charge for calls to him anytime, even after hours. He explains exactly what he's going to do and how expects this to play out.

Key word here: "Expects to play out." Watch getting your hopes up, which is why I have stated repeatedly you should not go towards suspended visitation -- but get it ORDERED that changes be made w/in a prescribed time and if they are not, then suspension of parenting time would happen. Like I've said, your concern is the alleged problem w/the cats and the child's allergies...so focus on that.

I just know that my son's father is going to absolutely FLIP and I am POSITIVE he will try to tack on all types of bogus allegations to bog down our case and to make the courts frustrated and take the focus off of him. Hopefully it will backfire, but I know I have a long road ahead.

And insist that your lawyer takes the appropriate action and/or asks the court for appropriate remedies (i.e. sanctions, attorney's fees, etc) if he is trying to delay or inflate the cost of the case.

 

[chipmunk226]

Update

I have a hearing set for May 18th so I will keep you updated. I will be sending my son to visit again this Friday, so hopefully with his new meds he will come back healthy

 

[sherimon]

Finally

Finally someone with some sanity