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Screwed in mediation

Discussion in 'Divorce Mediation' started by Todeemax1, Aug 3, 2016.

  1. Todeemax1

    Todeemax1 Law Topic Starter Guest

    Jurisdiction:
    Texas
    Went to a mediation last week for a custody battle. Was lied to by mediator, and my pro Bono lawyer didn't advise me properly. I fired him and now must go to final court date representing myself.
    I am going to motion to modify the mediation I think.
    I know this is limited information, I will give more on request.
    I have 2 weeks to prepare.
    Any help appreciated
     
  2. adjusterjack

    adjusterjack Super Moderator

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    You'll have to. You've given us nothing to go on and you haven't asked a question.
     
  3. Todeemax1

    Todeemax1 New Member

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    I have been accumulating evidence on my wife violating a temporary court order to see about custody of our now 8 yr old daughter For almost 2 years.
    Wife left for 4 yrs with no help to me or daughter. I filed for divorce and custody, which she counterfiled
    Wife violated at least 6 items on the court order and committed perjury in court which I could have proved. Worst thing was moving in with boyfriend, when court order said he wasn't supposed to be there from 10 pm to 8 am. The judge was adamant about her rules.
    Also there was an official home study from the court where I was chosen as the preferred parent.
    There were a number of positive things in my favor including 18 personal references from professional people and friends.
    Essentially I was in a great position.
    Went to the mediation and my attorney discussed with me before mediator entered about witnesses and such to proceed with my case
    One of the things that rings in my head was the words of the judge and the home study interviewer. "This is all about the child"
    I heard this many times.
    The first thing that the mediator said was "Normally these proceedings are about the child, but in this case it's in the interests of the parents."
    Basically the only options given to me were him showing me a calender for me to pick the days for my daughter to be with me. It was gonna be a 50/50 split and that's that.
    I was a bit angry and asked what about me getting full custody and wife getting visitation. He said no. No possibility of that and I had to choose days from the calender.
    My attorney never interceded and even tried helping the mediator getting me to pick dates for when I could see my daughter.
    I couldn't believe how I went from being in the driver's seat to having to settle for the 50/50 deal, and all of the offenses and abandonment issues didn't matter. I felt bad but my lawyer was there so I signed the papers.
    He never told me that my signature was binding, with no changing my mind, and the case was over never challenge the wife's violations and negative issues including home study choosing me.
    A couple of hours later after absorbing what happened, I emailed my attorney and said this was not acceptable. He said it was too late that my signature was binding.
    I immediately fired him, as I felt he never had my interests as a priority to him. Don't have enough time to elaborate.
    I'm not sure of what to do but I am fighting for my baby girl who doesn't want to be with her mom and boyfriend. Not to mention wife has a child with boyfriend while waiting
    With a little research, I found that information to modify order about the mediation was a possibility.
    I need help for sure. Pls
     
  4. Todeemax1

    Todeemax1 New Member

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    I guess the question is "What can I do to keep the case going so to get all my evidence shown to the judge, and be able to be considered for full custody. Considering that I have signed the mediation papers under duress.
     
  5. adjusterjack

    adjusterjack Super Moderator

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    Sorry, but that doesn't cut it. You should have been taking action on those violations WHEN they occurred. The way a court will look at your 2 year accumulation of "evidence" is that if it wasn't significant enough for immediate action, it's not significant enough to go back and address them all now.

    Common mistake, alleging perjury long after it occurred. The time to prove perjury is when the person is on the witness stand committing it. If you don't prove it then, the judge has no choice but to consider the testimony as truth and render decisions based on the testimony. Claiming perjury later is pretty much useless.

    Again, the time to bring that to court was WHEN it happened. Letting it slide for 2 years could be construed as waiving any right that you had to object to it.

    Rather useless. The way you get full custody is by proving that the ex is an unfit parent, not by proving you're a great guy.

    Sorry, again, but 50/50 custody is the norm unless you can prove (not just say) that the ex is an unfit parent. You apparently couldn't do that.

    That's right. They didn't matter. They weren't important enough for you to act on when they happened, so they're water under the bridge now.

    You didn't have to be told. All you had to do was read the agreement. According to Texas Family Code

    Section 6.602 (b) A mediated settlement agreement is binding on the parties if the agreement:
    (1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
    (2) is signed by each party to the agreement; and
    (3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.


    Is there such a prominently displayed statement on your mediation agreement?

    He's right.

    Apparently, those issues were not significant enough to affect the settlement agreement.

    Provide a link to that research. What I've found leads me to conclude that it's irrevocable.

    I don't think you can do anything to keep the case going. The hearing is to ratify the settlement agreement and enter it as a decree. You are free to attempt to voice your objections but I suspect that the judge will put a stop to it rather quickly.

    You won't get anywhere with the "duress" thing. You had the opportunity to read the agreement and refuse to sign it. Nobody put a gun to your head.

    I'm sure you weren't expecting my comments to be so negative but the analysis of your situation is based on how the law works. I'm no lawyer so there is always a chance that I am wrong. If I am, you will at least be aware of the things that you have to overcome.

    I suggest you have a consult with another attorney before you go to the hearing and have him tell you if you have any chance of undoing the agreement.
     
  6. Todeemax1

    Todeemax1 New Member

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    I saw a sign one day at the VA Hospital saying free veterans legal help. They said my case qualified and took me 6 months to get an attorney to take my case That said I begged my attorney every step of the way with phone calls and emails. He did nothing. He had a 30 yr list of credentials but never did anything or respond to my emails and pleas. I can prove he did nothing for me by emails. But I am more concerned to somehow get to the judge to see I was misrepresented. I can prove everything I have stated. I don't know why he didn't take care of me properly, but it's all true
    There must be something I can do to prove myself and present all my evidence.
    My daughter is traumatized by all of this and the truth needs to be presented.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    OK, you are basically claiming "ineffective counsel." Let's examine that. But before I cite a case decision I want you to understand that the case itself has nothing to do with your case but the decision of the judge of the Court of Appeals explains how "ineffective counsel" is determined in ALL cases.

    I'll paraphrase (in spite of quotes) because I can't copy and paste from the document.

    "To succeed on the issue of ineffective counsel an appellant must establish not only that the counsel's performance was deficient, but also show counsel's performance prejudiced the case. The challenged conduct will constitute ineffective assistance only when it was so outrageous that no competent attorney would have engaged in it. It must also be determined whether there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different."

    In the interest of: L.S.J., a child v. Appeal from 256th Judicial District Court of Dallas County (memorandum opinion )

    I don't see either of those elements being present in your case. I believe that the default was 50/50 and you did not, and could not, prove that she was an unfit mother at the time of the mediation, and that nothing your attorney did or didn't do would have changed the outcome of the mediation.

    Again, I suggest you consult a family law attorney and run this all by him and see if you have a chance to change things.

    Keep in mind that anything you do now, since you have already signed the agreement, is going to cost you money in attorney fees.
     
  8. Todeemax1

    Todeemax1 New Member

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    Q

    I did a check and have sent more than 120 emails to this attorney in the last 18 months with hardly any responses and especially nothing pertinent. At the times of the 10 /8 order I have begged and pleaded for his help citing the adverse affect on my daughter to no avail or reply. I sent numerous photos from wife's facebook with stamped dates proving what I said with no response from the attorney. I didn't have enough money for another attorney, but I didn't know what to do.
    I can prove ineffective assistance.
     
  9. Todeemax1

    Todeemax1 New Member

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  10. Todeemax1

    Todeemax1 New Member

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    I'm thinking given the opportunity, I could ask the court for my daughter to be removed from her mom's residence due to the fact they are living together against the court order. I have photo s and multiple emails to my attorney requesting something be done. I can prove the wife committed perjury with dated emails to my attorney with witnesses that he never used. Etc I have dated emails to my attorney on a half dozen violations my wife committed with no response from him.
    .
     
  11. adjusterjack

    adjusterjack Super Moderator

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    I have explained all the issues that I can think of. All you can do now is proceed the way you want to and hope for the best.
     
  12. Todeemax1

    Todeemax1 New Member

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    Thanks, I will let you know what happens.
    I am starting from scratch and need to learn fast. My daughter is depending on me. Any important things to take into consideration when filing motion to modify? Thanks for caring and sharing.
     
  13. adjusterjack

    adjusterjack Super Moderator

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    Yes.

    1 - Proper format.
    2 - Proper citation of authorities (case decisions and/or statutes) that support your motion.
    3 - Proper service of the motion on the other party well in advance of the hearing. This is not something you just take to court and hand to the judge.

    I suggest you get an attorney to handle this for you. But if you can't or won't then I suggest you visit a law library and look for samples of similar motions.
     
  14. Todeemax1

    Todeemax1 New Member

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    Thanks
     

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