Mom Absent on Mother's Day

[aviddiver]

Hello,

Mother's Day 2010 fell on my weekend with my son. Thursday prior, I asked the mother what time she was picking up my son on Sunday (Mother' Day) - hoping after church. The mother said that she made plans for the whole weekend (perhaps with new boyfriend and going out of town), so, she is not picking up our son (almost 7 yrs. old) - and she didn't.

We have a court order which explicitly indicates that the child is to be with the mother on Mother's Day (as I would assume regardless of who has the weekend).

Can I use this in court to get more time with my son - or more?

Thank you and God Bless!
Curious avid_diver

 

[army judge]

Hello,

Mother's Day 2010 fell on my weekend with my son. Thursday prior, I asked the mother what time she was picking up my son on Sunday (Mother' Day) - hoping after church. The mother said that she made plans for the whole weekend (perhaps with new boyfriend and going out of town), so, she is not picking up our son (almost 7 yrs. old) - and she didn't.

We have a court order which explicitly indicates that the child is to be with the mother on Mother's Day (as I would assume regardless of who has the weekend).

Can I use this in court to get more time with my son - or more?

Thank you and God Bless!
Curious avid_diver

You can try, but it usually doesn't work exactly as you posited.
You can take her to court and request that she be held in contempt.
She'll have to explain to the judge why she failed to do as ordered.
You see, a custody agreement is a court order.
It tells each of you to do, when to do it, where to do it, and how to do it.
It also spells out how frequently it must be done.

So, take her to court and she'll have to explain to the judge.
You can request sanctions for her contempt of the judge's order.
She'll probably get a tongue lashing and be admonished NOT to do it again.
You can ask that you gain more time, but you'll probably be told no for a one off violation.

But, these things are documented.
If they keep occurring, sanctions eventually happen.
Who knows, some judges sanction you the first time.

 

[irish223]

I think ANY judge would be irritated if you take the mother to court for missing one day, albeit Mother's Day.

 

[aviddiver]

Thank you for your responses. This might just open up a can of worms.

The mother has not missed just one day. For example, last weekend was her weekend. She said that my son wants to go with me, so, I said I will pick him up around 8:00pm. The mother said that I should pick him up before that because since he is going to me, she made plans to go out with her friends. When I picked up my son, he looked at me and in a low voice (like whispering), he said, "I get to sleepover tonight". The mother did not pick him up until Monday after work. I also had my son for the last 3 weekends that I can remember.
The order was for me to pickup my son from school (2:30pm) and the mother picks him up from my place after work (5:00pm). On Thursdays, she works until 7:00pm, often, she would just let my son sleepover. Hooray! More time with my son. This is good for me and I will take my son anytime, however, child support is based on mother's lies.
I have not been working for the last 5 months and all savings had been depleted. Unemployment takes 25% off my check but I kept it going until last month when I went to file for child support modification which will bring support down by about half. Because of this, mother is not letting me have my son during the day while she is at work. So, he now just watch tv and play video game. If he is with me, we can divide the day between practicing Math (review 1s grade and prepare 2nd grade level), penmanship and writing (as recommended by 1st Grade teacher), and read books (also library program).

Now, mother lives him with the neighbor instead of me during the day. I think she is doing this to claim more time for child support.

* Mother lives in a 3 bedroom mobile home. One room for her 15-yr-old girl, one for her 22 yr-old boy, and my son sleeps with his mother (supposedly). I live in a one bedroom apartment with 2 beds - I used to have 2 bedrooms. My son had witnessed the older son yelling and screaming (bad words) at the mother several times and one time my son told me he hid in the mom's bedroom. I am not sure if police were called.

* My son told me that he slept on the floor in the living room pretending to be camping because mom's boyfriend is sleeping over. Another time he slept on the floor with the BF's son and he was pushed out of the air mattress.

* I signed my son to tennis lesson on Saturdays but mother wouldn't take him on her weekend even when she is working on Saturdays during her weekend instead of letting me take him, so, he is still in beginning level and not so motivated.

Well, I hope I didn't bore anybody because there are many more with regards to his school.

One quick question: is Title IV-D a taboo in Family Court? Even a lawyer I paid to represent me would not mention it in her office.

Thank you and Best regards.
avid_father

 

[army judge]

You asked about Title IV-D.

It isn't taboo, just sometimes not feasible or permissible.

Read sections d & k, to understand why the attorney may have reacted in an odd way.

Appearances by telephonic conference are encouraged, except in contempt proceedings.

2010 California Rules of Court​

Rule 5.324. Telephone appearance in title IV-D hearings and conferences

(a) Purpose

This rule is intended to improve the administration of the high volume of title IV-D child support hearings and conferences. Participation by both parents is needed for fair and accurate child support orders. The opportunity to appear by telephone fosters parental participation.

(b) Definition

"Telephone appearance," as used in this rule, includes any appearance by telephonic, audiovisual, videoconferencing, digital, or other electronic means.

(c) Permissibility of telephone appearances

Upon request, the court, in its discretion, may permit a telephone appearance in any hearing or conference related to an action for child support when the local child support agency is providing services under title IV-D of the Social Security Act.

(d) Exceptions

A telephone appearance is not permitted for any of the following except as permitted by Family Code section 4930:

(1)Contested trials, contempt hearings, orders of examination, and any matters in which the party or witness has been subpoenaed to appear in person; and

(2)Any hearing or conference for which the court, in its discretion on a case-by-case basis, decides that a personal appearance would materially assist in a determination of the proceeding or in resolution of the case.

(Subd (d) amended effective January 1, 2008.)

(e) Request for telephone appearance

(1)A party, an attorney, a witness, a parent who has not been joined to the action, or a representative of a local child support agency or government agency may request permission of the court to appear and testify by telephone. The local child support agency may request a telephone appearance on behalf of a party, a parent, or a witness when the local child support agency is appearing in the title IV-D support action, as defined by rule 5.300(c). The court may also, on its own motion, allow a telephone appearance.

(2)A party, an attorney, a witness, a parent who has not been joined to the action, or a representative of a local child support agency or government agency who wishes to appear by telephone at a hearing must file a request with the court clerk at least 12 court days before the hearing. A local child support agency that files the request for telephone appearance on behalf of a party, a parent, or a witness must file the request with the court clerk at least 12 court days before the hearing. This request must be served on the other parties, the local child support agency, and attorneys, if any. Service must be by personal delivery, fax, express mail, or other means reasonably calculated to ensure delivery by the close of the next court day.

(3)The mandatory Request for Telephone Appearance (Governmental) (form FL-679) must be filed to request a telephone appearance.

(Subd (e) amended effective January 1, 2008.)

(f) Opposition to telephone appearance

Any opposition to a request to appear by telephone must be made by declaration under penalty of perjury under the laws of the State of California. It must be filed with the court clerk and served at least eight court days before the court hearing. Service on the person or agency requesting the telephone appearance; all parties, including the other parent, a parent who has not been joined to the action, the local child support agency; and attorneys, if any, must be accomplished using one of the methods listed in (e)(2).

(Subd (f) amended effective January 1, 2007.)

(g) Shortening time

The court may shorten the time to file, submit, serve, respond, or comply with any of the procedures specified in this rule.

(h) Notice by court

At least five court days before the hearing, the court must notify the person or agency requesting the telephone appearance, the parties, and attorneys, if any, of its decision. The court may direct the court clerk, the court-approved vendor, the local child support agency, a party, or an attorney to provide the notification. This notice may be given in person or by telephone, fax, express mail, e-mail, or other means reasonably calculated to ensure notification no later than five court days before the hearing date.

(Subd (h) amended effective January 1, 2007.)

(i) Need for personal appearance

If, at any time during the hearing, the court determines that a personal appearance is necessary, the court may continue the matter and require a personal appearance.

(j) Vendors, procedure, audibility, reporting, and information

Subdivisions (i) through (m) of rule 3.670 apply to telephone appearances under this rule.

(Subd (j) amended effective July 1, 2008; previously amended effective January 1, 2007.)

(k) Technical equipment

Courts that lack the technical equipment to implement telephone appearances are exempt from the rule.

Rule 5.324 amended effective July 1, 2008; adopted effective July 1, 2005; previously amended effective January 1, 2007, and January 1, 2008.


http://www.courtinfo.ca.gov/rules/index.cfm?title=five&linkid=rule5_324

 

[irish223]

I'm so confused....

Okay, I didn't see anything about a telephone conference, but maybe I missed something.

OP, why are you asking about Title IV-D?

Truthfully, I don't see anything in your post that will change custody of your son. Most of the concerns you have would be attributed to parenting differences. Also, you should not plan things for your son (tennis lessons) on his mom's time.

You may be able to get more time though.

However, if you take your ex to court to change the visitation and it doesn't change, your ex may never allow you any extra time with your son.

I'm not advising either way, just presenting the possibilities.

 

[aviddiver]

Good afternoon to all!

With all due respect to armyjudge, I do not know what you posted here, either. The Title IV-D I was referring to isthe Social Security Act wehrein hte state collects incentive money from the fedral government for collecting child support.

With regards to irish223, his tennis lessons is exploratory. I want to know what sport he would be interested in to keep him active instead of watching tv and playing video games.

The mother is already not letting me have my son during the daytime while she is at work because I filed for support modification. I can understand how difficult to see things sometimes.
I do not think my son should be sleeping on the floor so that the mother can have the boyfriend sleepover. She can let me have my son sleep in his own bed at my place while she can screw her brains out. The order is that I have my son everyother weekend but I had my son for the last 3 weekends and will have hm again this coming weekend.

My view is, I will not get custody of my son and will continue to pay child support because the State has interest in collecting incentive money from the feds. This is why I am asking about Title IV-D. I am also looking into filing USC 42 Section 1983 against the judges and lawyers who "acted under the color of the Law". Again, looking into this and considering the consequences. Any thougths and advise from armyjudge is greatly appreciated.
I will never abandon my son and will always fight for him.

Thank you all for your participation. Every discussion lits a candle to my resolve.

Sincerely,
avid_diver (USMC 1981)
Semper Fi

 

[army judge]

Good afternoon to all!

With all due respect to armyjudge, I do not know what you posted here, either. The Title IV-D I was referring to isthe Social Security Act wehrein hte state collects incentive money from the fedral government for collecting child support.

With regards to irish223, his tennis lessons is exploratory. I want to know what sport he would be interested in to keep him active instead of watching tv and playing video games.

The mother is already not letting me have my son during the daytime while she is at work because I filed for support modification. I can understand how difficult to see things sometimes.
I do not think my son should be sleeping on the floor so that the mother can have the boyfriend sleepover. She can let me have my son sleep in his own bed at my place while she can screw her brains out. The order is that I have my son everyother weekend but I had my son for the last 3 weekends and will have hm again this coming weekend.

My view is, I will not get custody of my son and will continue to pay child support because the State has interest in collecting incentive money from the feds. This is why I am asking about Title IV-D. I am also looking into filing USC 42 Section 1983 against the judges and lawyers who "acted under the color of the Law". Again, looking into this and considering the consequences. Any thougths and advise from armyjudge is greatly appreciated.
I will never abandon my son and will always fight for him.

Thank you all for your participation. Every discussion lits a candle to my resolve.

Sincerely,
avid_diver (USMC 1981)
Semper Fi

I saw you were from California and thought your reference was about the state hearing, not a potential federal lawsuit.

My bad.



Sent from my iPhone using Tapatalk

 

[aviddiver]

Dear army judge,

There is no need for apologies. I get carried away sometimes when dealing with my son's custody. I often speak/write in telegraph mode and end up omitting some important details. Perhaps it was my fault for not being more specific.

To irish223, thank you for your input, I appreciate anything constructive. My frustration with the system has been built up for the last 5 years. I am convinced that the mother cares more for the child support than the child's well being - health, education and happiness. I want my ONLY child to have more than I did growing up in the Philippines and raise him as I was by my parents. I'm sure every parent wants these for their children as well.

Best Regards.

 

[irish223]

With regards to irish223, his tennis lessons is exploratory. I want to know what sport he would be interested in to keep him active instead of watching tv and playing video games.

The reason for the tennis lessons is irrelevant in the court's eyes. The point is that one parent should not make plans for the child during the other parent's time without that parent's agreement. That goes both ways, for the CP and the NCP.

The mother is already not letting me have my son during the daytime while she is at work because I filed for support modification. I can understand how difficult to see things sometimes.

I understand, and I agree that some mothers let the child support issue cloud their thinking. As I said, if you seek to change custody/visitation, she may restrict your time to only that which is court ordered. I'm not saying you shouldn't try, but you should consult with an attorney to gauge your chances of success.

I do not think my son should be sleeping on the floor so that the mother can have the boyfriend sleepover.

Again, I understand how you feel, but I don't think the court will view this as a problem. My kids often slept on the floor during sleep-overs with their friends... with no air mattress.

She can let me have my son sleep in his own bed at my place while she can screw her brains out. The order is that I have my son everyother weekend but I had my son for the last 3 weekends and will have hm again this coming weekend.

Here's the thing... you sound like you're complaining that mom lets you have extra visitation. You say you're happy to have the extra time, but you're complaining about the mom NOT having the child on HER weekends. The court MAY grant you more visitation time with your son because of this, but it's not enough to change custody.

My view is, I will not get custody of my son and will continue to pay child support because the State has interest in collecting incentive money from the feds. This is why I am asking about Title IV-D.

So, your attorney wasn't unwilling to discuss Title IV-D, per se, right? She was unwilling to discuss how the State's application of it resulted in your inability to gain custody of your son.

I am also looking into filing USC 42 Section 1983 against the judges and lawyers who "acted under the color of the Law". Again, looking into this and considering the consequences. Any thougths and advise from armyjudge is greatly appreciated.

I believe you'll have to provide some history regarding your relationship with the mother, what actions you've previously initiated in court, etc. to get any valuable advice on a lawsuit of this type. Did your attorney say ANYTHING about it?

 

[aviddiver]

Hi irish223,

Thank you for your thoughts. At this time, I no longer trust any family attorney, so, I do not have one. I have retained 3 attorneys and I have gotten more done than these attorneys, child's attorney, and 730 evaluator combined.

You may have a point with the tennis lesson. His Saturday lessons are in the morning and the mother works during this time. I thought that the mother will let me take my son while she is at work, after all, it is for the child's benefit and not mine. Also, keeping my son active benefits me and her since he would not get fat sitting on his butt and we don't have to buy fitting clothes often.

With regards to sleeping on the floor, to me this is a glass half full or half empty. To me, the BF dragged his son to my son's mom's home to be with the mother and not for the children's sleepover.

You are correct, I do want more time with my son and even full custody. I am not complaining about the mother giving me more time, I am frustrated that the mother is collecting child support for the calculated visitation schedule but not doing so (huh?). Here's the thing, after we separated, I found out that she filed for child support while still living with me.

Today, my son rode his bike for the first time without training wheels, hoorrayy! I need to start exercising again...

Have a wonderful Fourth weekend!

 

[PQN2]

Do your court orders have a right of first refusal? If not, that may be worth getting a modification to have that added. Then when mom is working, you get to have your son with you. Take very detailed notes for about 6 months exactly who has son when, if you have him the majority of the time, then go to court and ask for a modification to reflect the status quo (if at that point you have him significantly more than the current court order).

 

[aviddiver]

I asked the court last year for Right of First Refusal and was denied twice. First time, I asked for First Refusal with child's school attendance records (tardiness and absents). Also, false accusations of mother telling school not to allow me to pickup my son on a certain Friday when in fact it was my weekend. School principal was involved because mother did not take child to school that day anyway. I filed a police report and tracked her down; police spoke to her before she agreed giving up my child. With all these, First Refusal was denied. Second time, I asked for reconsideration and brought (subpoenaed) the principal with me. The same judge dismissed the principal saying that he had better things to do (even though school is still out/closed for summer break) and called me "serial filer".

Maybe, I'll ask again.

 

[irish223]

I asked the court last year for Right of First Refusal and was denied twice. First time, I asked for First Refusal with child's school attendance records (tardiness and absents). Also, false accusations of mother telling school not to allow me to pickup my son on a certain Friday when in fact it was my weekend. School principal was involved because mother did not take child to school that day anyway. I filed a police report and tracked her down; police spoke to her before she agreed giving up my child. With all these, First Refusal was denied. Second time, I asked for reconsideration and brought (subpoenaed) the principal with me. The same judge dismissed the principal saying that he had better things to do (even though school is still out/closed for summer break) and called me "serial filer".

Maybe, I'll ask again.

The bolded part is a HUGE problem for you, and IMO will affect any legal action you attempt.