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the results of actions taken by a claimant being used against the respondent

Discussion in 'Other Family Law Matters' started by Purdan, Jul 13, 2021.

  1. Purdan

    Purdan Law Topic Starter New Member

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    Jurisdiction:
    Texas
    Please amend the title if need be. Also, I am not asking for legal advice of how to defend if that is prohibited, but would like to know keywords that could be helpful in possible research of case law etc. pro or con.
    I would like to know if there is legal terminology or a concept that describes the following:

    Generally-
    A person has been affected by the actions of another, the actions have contributed to the difficulties of that person being able to perform optimally which has created prolonged deficiencies, and now the deficiencies are being used against the person in a legal suit (SAPCR) by the one who took the action. Moreover and somewhat along the same lines, Counsel writes an Ambiguous Order and then tries to deflect the fact that his Client is in Contempt of the Order because of the Ambiguity.

    Specifics-
    A modification was made to our original divorce decree resulting in
    1) I was given the right to designate for 2 out of 4 children
    2) My Obligation to pay periodic child support was terminated
    3) It was found and agreed that Health Insurance was Available and Affordable through her employment and she would enroll the children in her plan and we would split the premium as Medical\Dental Support
    She refused to enroll them and continued to renew the State assisted plan CHIP by fraudulently claiming children in her household to qualify and not correctly reporting household changes to HHS
    After informing her I would be rightfully claiming my son as my dependent because he lived with me the entire year, she claimed him (fraud). I contacted her employer to initiate enrolling the children and was told that they don't do anything with out a lettter from the OAG. I contacted and submitted a request for service to "enforce the modified medical support order, agreed to 3/19 and rendered 9/19." Less than a month later I began receiving Enforcement Letters from the OAG stating I was in arrears. I immediately made contact with them to inform them of their mistake and supposedly before any real action took place because I was told that those letters are automated and just warnings. They continued the actions and slowly made adjustments. They failed to mitigate in the same manner in which they began taking action (they could/should have paused their actions, knowing how detrimental the effects can be (restricting\limiting a persons resources, in effect arresting the individual). They have had an incredible impact on my ability to improve my position and give the neccessary time needed to my relationships with my children with long lasting affect In Nov 2020 she filed a petition to modify so she could change the medical order and also get full custody of our son. I am still trying to get the existing Order enforced - I am Pro Se and want to be sure it is done correctly in form and substance. Researching Law and Procedure have consumed much of my time, again I feel this is a consequence of her actions (ie initiating another suit when all the resources taken by it should go to the children involved) Full disclosure - making my situation worse as far as consuming my time and money resources I have since put myself in situations that resulted in my arrest (unjust from my perspective and contesting and filing suit against the entities involved), and though I have not been found guilty of anything she is including this in her case to insinuate I am using drugs and to support her concern of that drug use to justify her continued interference with my legal possession and visitation rights. Even worse, since she cannot or refuses to differentiate between "Arrested and accused of possession of a possible controlled substance" does not equate to "Guilty of using said substance" she has allowed the information to reach the children without clarification.
    So, as I'm sure anyone can tell it's complicated because there are criminal acts on her part that neither the OAG or the Inspector General (I reported her fraudulent activities with HHS to them but the only action I have seen is that I have been removed from her account with HHS as an Authorized Rep) want to pursue the matter, which has left me with the task of finding the correct way to get the facts of actions and consequenses of criminal behavior introduced into a family\civil case to be considered in my defense because all I want at this point is to have her new suit dismissed and the existing order enforced because it provides the best option of equal parenting. I don't want her to be prosecuted neccessarily, I just want the facts to be known and considered so that a just decision can be made, if that makes since.
    So, if you took any amount of time to read this, thank you. I would appreciate any response or input (pro or con) within the scope of what is allowable in this forum. Keywords and or phrases.

    Respectfully Submitted
     
  2. zddoodah

    zddoodah Well-Known Member

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    I don't see a question in your post. Do you have one?

    Also, paragraphs breaks are you friend.
     
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  3. Tax Counsel

    Tax Counsel Well-Known Member

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    That part is an easy fix. I assume that what happened was that you filed your tax return electronically and the return was rejected because she filed electronically first and claimed the child as her dependent. When that happens, just print out your return, sign it, and file it by mail. The IRS will give you the dependent exemption when the return is processed and then about a year later after your return is matched with hers you'll both get letters prompting you to justify your claim to the exemption. She will be unable to do that and the IRS will go after her for the extra tax she owes and your return won't be changed. If you didn't follow that process and instead filed electronically without the dependent exemption then what you would do now is file an amended return to claim that exemption, assuming of course that doing so will save you tax and get you a refund.
     
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  4. Purdan

    Purdan Law Topic Starter New Member

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    Thank you for your reply and advice. I apologize, It does read more like a statement than a question.
    Above and before "Generally-" rephrased "Is there legal terminology to describe the following?” And then tried to give a general description.
    I’m sure it is probably confusing to most because of my recent over-explaining for fear of being misunderstood which only seems to complicate and confuse if it wasn’t already. But maybe the reason for my question would be helpful. I am currently Pro Se in our 2nd modification and I am trying to explain to the court some major underlying causes for what I am being accused of “Voluntary relinquishment of Primary care of my son.” I am trying to be efficient so as to avoid further loss on either side because the kids should not suffer the consequences of our disagreement. I want all the facts to be considered and understood before judgment is rendered, so her actions (and those of the OAG) need to be exposed while exposing her criminal actions the cause of action (don’t know that is the proper use of CoA but it is the excuse given in her petition to modify). I have much fault for my position in this legal situation, though I did not want the divorce, I did not challenge it which would have asserted the importance and priority my children hold in my life if it were ever questioned. I will no longer acquiesce to what is good for HER at the expense of the children; and the alienation is too much. I have tried and failed to have the existing order enforced via the OAG of Texas and to have her fraud verified through the Inspector General -(I forgot to get that # at the end of submission) but all responses or actions from either seem to indicate they don’t want to deal with it and wanting to avoid all accountability.
    So I am trying to exclaim to the court some major underlying causes for what I am being accused of “Voluntary relinquishment of Primary care of outrage son.” But her criminal actions need to be exposed because why can she get a modification when she is in contempt of the current order?………………..
    I have some pressing business and must finish this later. TBC
     
  5. Purdan

    Purdan Law Topic Starter New Member

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    I filed electronically and recently amended so I must wait……..How can I ask for a continuance because I am awaiting such judgments that would seem to be helpful in my defense? Thanks have to run
     
  6. army judge

    army judge Super Moderator

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    The Texas AG will be of no use in resolving a dispute involving federal income taxes.

    The IRS has clear standards in regard to which parent gets to claim the children following a divorce. The IRS defines the qualifying parent as the parent who is the custodial parent. A parent can claim that child, so long as:

    The child is 19 or younger, or, if a full-time student, under the age of 24.

    The child must live with you for more than half the year.

    The child must receive at least 50 percent of their financial support from you.

    If you have joint custody, then the qualifying parent would be the one who has the child the most.

    Example: If Jane has the child for 176 nights and Jon has the child for 174 nights, then Jane would be considered the qualifying parent and can claim the child as a dependent on her tax return.


    Claiming Children on Tax Returns after Divorce | Robinson & Henry, PC.

    You can report her actions directly to the IRS.

    Before you do that, it is suggested that you mediate the matter, if possible.
     
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  7. Tax Counsel

    Tax Counsel Well-Known Member

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    I'm going to guess that the attorneys who posted that information are family law attorneys and not tax attorneys because they got some details wrong. There are two tests for claiming a dependent on your return, a qualifying child test and a qualifying relative test. In order to qualify to claim a dependent under the qualifying child test, the following requirements must be met:

    1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant of any of them.
    2. The child must be (a) under age 19 at the end of the year and younger than you (or your spouse if filing jointly), (b) under age 24 at the end of the year, a student, and younger than you (or your spouse if filing jointly), or (c) any age if permanently and totally disabled.
    3. The child must have lived with you for more than half of the year.
    4. The child must not have provided more than half of his or her own support for the year.
    5. The child must not be filing a joint return for the year (unless that joint return is filed only to claim a refund of withheld income tax or estimated tax paid).
    Note that the requirement is not, as that attorney web page said, that you must provide at least 50% of the child's support but rather the rule is that the child must have provided less than half his/her support.

    Under those rules, generally it is the custodial parent (which for tax purposes is the parent who has physical custody of the child for the greater part of the year) that gets to claim the exemption for the child. But there is a rule that allows the noncustodial parent to claim the exemption. In order to qualify, ALL the following must be true:

    • The parents are divorced, legally separated, or lived apart at all times during the last six months of the tax year;
    • The child received at least half of his/her support from the parents (so it the total support provided by the two parents combined that is looked at here);
    • The child was in the physical custody of one or both parents for more than half the year (so again, we look at the physical custody of both parents combined for this test);
    • and the custodial parent executes a waiver (Form 8332 can be used for the waiver) agreeing not to claim the exemption for the child and releasing the exemption to the noncustodial parent. The waiver must be attached to the noncustodial parent's tax return.
    There is no way for a noncustodial parent to get the exemption without that waiver.

    See IRS Publication 501 which explains all this in great detail.
     
    Last edited: Jul 14, 2021
  8. Purdan

    Purdan Law Topic Starter New Member

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    Thanks again for everyone's previous reply. Possible run-ons and
    Update:
    The trial is set for Tuesday the 10th and I have yet to file my motion. I understand that there may be an issue with the last-minute filing. She has been aware of my intentions since Jan 2020 when I regretfully submitted an RFS to the OAG asking them to enforce the modified medical support order, when I commented in both mediations that she was in contempt of the order and affirmed my intentions to file a motion to enforce Support & Possession (Interference), at our previous trial date when I Objected to the Associate Judge and received a continuance, I even posed the question in an email to her attorney about what his understanding was regarding the Medical & Dental Support Orders as it was discussed in Mediation and he scripted so he may be able to explain how she was not in contempt (no answer), and finally within the last two weeks, thru OFW messaging, I tried to explain why she was in contempt and how she committed fraud and yet I had not taken action against her, explaining the kids are the ones losing all resources consumed dealing with and asking her to withdraw the suit so that I can be given a chance to better my position unhindered. I gave her every opportunity until literally the last minute to prevent more wasted time and money.

    Intending to file:
    -Writ of Habeas Corpus (for the sole purpose of establishing my rightful possession of my son; I do not want to separate him from his sisters, he needs to be there to protect them)
    - Motion to enforce the existing support and possession orders asking for contempt
    - Writ of Mandamus to have the OAG (fulfill my RFS) and the Inspector General complete the investigation into her noncompliance to update her household in order to defraud HHS and obtain health Insurance she should not have been applying for per the mediated Order.

    QUESTIONS:
    1) Can I file any and all the day of trial in the courtroom?
    2) Can I write a letter to the court explaining or just listing the facts surrounding all that has taken place so that all can be considered? If so, how best to submit it (ie. as an exhibit of evidence, an affidavit, a supplemental answer, attached to a motion etc.)
    3) Where can I find an example of the forms listed above - they're going in if it has to be crayons on a big chief!

    Thx in advance
     
  9. justblue

    justblue Well-Known Member

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    How old are the children? Why does your son need to "protect" his sisters? Why is that adult responsibility being placed on his shoulders?
     
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  10. army judge

    army judge Super Moderator

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    You should ask the clerk of the court, or visit the court's website to obtain the answer to the above question.

    In most instances, filings must be completed weeks, or days before the hearing.

    The specific date is usually set by the court.

    Individual litigant communication directly with the judge is often disallowed.
    Your question indicates you are involved in the proceeding far above your ability to perform adequately to preserve and protect your rights.

    You might consider making an appearance at the scheduled hearing and asking the judge for a postponement in order to allow you to retain an attorney to represent your interests.



    Probably on the court's website.
    You can ask the court clerk for more specifics.

    I haven't plead a case in Harris County Texas in the last 15 months.

    This is for the 190th District Court.
    I use it as an example and suggest you SCOUR the website of the court in which you will be appearing:

    Procedures for the 190th Civil District Court:

    3. Motions

    3.1 Certificate of Conference

    A certificate of conference is required for all motions (including discovery motions), pleas, and special exceptions except for:

    motions for summary judgment;

    default judgments;

    motions for voluntary dismissal or non-suit; and

    motions involving service of citations.

    Certificates of conference must state how and when parties have conferred on the matters on which relief is sought, and whether the relief is opposed, agreed, or agreed in part.

    3.2 Proposed Orders

    All motions and responses must have a proposed order. The Court may pass hearings on motions filed without a proposed order. All motions should have their own proposed order (Please do not combine multiple motions into one order). The proposed order should include the exact title of the motion being considered.

    3.5 Settlements, Nonsuits, and Agreed Judgments

    3.5.1 Settlement Announcements

    It is not necessary to appear in Court to announce a settlement; a phone call to the Trial Coordinator is sufficient. However, a plaintiff who announces settlement without an enforceable Rule 11 agreement does so at his/her own risk. Cases are dismissed for want of prosecution if no judgment is filed within 14 days after the court is notified of settlement (this time may be extended where necessary). Failure to obtain an enforceable settlement agreement will not be good cause to avoid dismissal or to reinstate the case.

    3.5.2 Settlements Involving Minor Children

    A Guardian Ad Litem will be required for all settlements involving minor children. The parties are to submit an agreed motion and order for appointment of a Guardian Ad Litem. The Court will then select the Guardian Ad Litem for that case, and will inform the parties of the Court's decision. Once a Guardian Ad Litem has been appointed, the parties may contact the Court Clerk in order to obtain a Minor Settlement hearing date. At the time of the hearing, the parties are to present the proposed Judgment, as well as the Supreme Court ad litem fee report.


    The court's website MIGHT be useful in your preparation:

    Office of Harris County District Clerk - Marilyn Burgess | Harris County District Clerk - Civil Courts
     
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  11. Zigner

    Zigner Well-Known Member

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    Buried in your huge block(s) of text is the fact that you were arrested for possession and are awaiting trial. I would fight you based on that alone...you try to play it off by saying you're innocent until proven guilty (true), but you never actually claim to be innocent.
     
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  12. Tax Counsel

    Tax Counsel Well-Known Member

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    I'm not seeing how a writ of habeas corpus applies here. A writ of habeas corpus is an order directing that a confined person be brought before the court so that the court can determine if the person is properly held. "The writ of habeas corpus is designed for the purpose of giving a speedy remedy to one who is unlawfully detained." Ex parte Ramzy, 424 S.W.2d 220, 223 (Tex. 1968). So who is unlawfully detained here? What is it that you are really trying to accomplish with this?

    What is the purpose of the upcoming trial? If it's the support and possession issues then it is likely too late to file those the date of the trial. Typically most motions that are related to an upcoming trial or hearing need to be filed a certain number of days prior to that hearing/trial.

    Two points on this. The OAG and Inspector General are not parties to your current litigation with your ex. You'd need to file a separate action against them to seek the writ of mandamus. Second, such a lawsuit is almost certainly doomed to fail. A writ of mandamus applies when an agency or official is required by law to take a particular action and has no discretion in the matter. As a Texas appeals court noted:

    There are many cases which hold that mandamus will not lie to direct or control agencies or individuals who have the responsibility of discretion and official judgment.

    Coe v. City of Dallas, 266 S.W.2d 181, 182 (Tex. Civ. App. 1953).

    Law enforcement agencies have the discretion to decide what matters to investigate and what actions to take based on the investigations that they do. You cannot compel an agency to undertake a criminal investigation.

    You really should have a lawyer representing you. It seems to me that you do not understand the law and the rules of litigation well enough to really succeed in this on your own. You may end up filing the wrong things at the wrong time and that may kill your chances of succeeding in your goals. You need to know the right way to go about this, and what things are possible for you to do and which things are not.
     
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  13. Purdan

    Purdan Law Topic Starter New Member

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    Quote: "I am innocent of all allegations"... I know "yea sure, of course, he would say that"
    I wasn't playing. I was trying to be transparent while expressing the difficulty caused by an unjust act and someone expressing it as an established fact then equating it to "the use of" with the sole intention of defaming my character, if it's fair it's fair, but her guilt is in black and white by her own hand and in the hands of the OAG and the Inspector General with no consequence.
    WHAT say you concerning the Facts of the actions taken by her, the OAG, the Inspector General, or her attorney?
    I sincerely appreciate the comment and cannot prove my statement of innocence over the internet. Please take no offense, You are welcome to jump on board her ship, the attorney who refuses to correct the misspelled name identifying my youngest daughter in the Caption and body of the original and amended petitions as well as misidentifying the Amended Petition as the Respondents Original Answer and himself as the Attorney for Respondent in the Certificate of Service of the Amended Petition might thank you. Obviously, I am way thafuck over my head, but it has become my purpose and I intend to pursue every viable option available to defend myself, if for no other reason but to have all the facts on the record so that after I have completely fucked up my life, it can be used as a teachable moment to show what not to do.
     
  14. justblue

    justblue Well-Known Member

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    Please, refrain from using vulgar language.

    Would you please answer the questions asked in post #9? Thank you.
     
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  15. Purdan

    Purdan Law Topic Starter New Member

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    -Ages- Son 16, Daughters 13 & 10
    -He needs to "protect" not from danger at this time, but as a function of oversight if that makes sense because there has been a decrease in the attention given from HER.
    -Not being placed, I'm referring to strengthening the innate sense of duty he already displays
     
  16. Purdan

    Purdan Law Topic Starter New Member

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    It is my son whom I was given the exclusive right to designate in her 1st modification suit, he is not in the home I designated, and according to Sec 157.371 of the Texas Family Code and a few other papers written by Attorneys concerning enforcement actions, Habeas can be used to compel the return as stated below. I wanted to draft a letter to the court and All parties concerned explaining and listing the facts of actions taken by me before and after the petition was filed. Expressing my regretful decision to ask the OAG to perform their duties to help enforce the medical support order, which has still not been addressed after a year and a half (My reason for the Mandamus Explaining that their refusal to account for their mistake and mitigate the loss caused by the Unjust punitive actions being taken against me caused much damage to my abilities to adequately defend myself in this matter. Asking for a continuance to allow me time to complete a proper presentation of my defense to the court, OR excuse my procedural deficiencies as they have with her Attorney's previous late submittals and erroneous drafting of the Amended Petition, among other things and let's just lay it ALL out and have an open discussion of what it's all about.

    SUBCHAPTER H. HABEAS CORPUS

    Sec. 157.371. JURISDICTION. (a) The relator may file a
    petition for a writ of habeas corpus in either the court of
    continuing, exclusive jurisdiction or in a court with jurisdiction
    to issue a writ of habeas corpus in the county in which the child is
    found.
    (b) Although a habeas corpus proceeding is not a suit
    affecting the parent-child relationship, the court may refer to the
    provisions of this title for definitions and procedures as
    appropriate.
    Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
    Sec.A157.372.
    RETURN OF CHILD. (a) Subject to Chapter 152
    and the Parental Kidnapping Prevention Act (28 U.S.C. Section
    1738A), if the right to possession of a child is governed by a court
    order, the court in a habeas corpus proceeding involving the right
    to possession of the child shall compel return of the child to the
    relator only if the court finds that the relator is entitled to
    possession under the order.

    What is the purpose of the upcoming trial? If it's the support and possession issues then it is likely too late to file those the date of the trial. Typically most motions that are related to an upcoming trial or hearing need to be filed a certain number of days prior to that hearing/trial.

    Yes, it is her petition to modify possession and conservatorship. I was relying on the Family code again Sec. 157.061 (c) and did not intend to wait for literally the last minute, BUT I was trying to give HER until the last minute to withdrawal her suit, and I suck and still have nothing drafted so here I am trying to find a quick & easy way to ask for a continuance while having everything in hand to sling across the courtroom if they refuse to accommodate.

    SUBCHAPTER B. PROCEDURE
    Sec. 157.061. SETTING HEARING. (a) On filing a motion for
    enforcement requesting contempt, the court shall set the date,
    time, and place of the hearing and order the respondent to
    personally appear and respond to the motion.
    (b) If the motion for enforcement does not request contempt,
    the court shall set the motion for hearing on the request of a
    party.
    (c)The court shall give preference to a motion for
    enforcement of child support in setting a hearing date and may not
    delay the hearing because a suit for modification of the order
    requested to be enforced has been or may be filed
    .

    Two points on this. The OAG and Inspector General are not parties to your current litigation with your ex. You'd need to file a separate action against them to seek the writ of mandamus. Second, such a lawsuit is almost certainly doomed to fail. A writ of mandamus applies when an agency or official is required by law to take a particular action and has no discretion in the matter. As a Texas appeals court noted:

    There are many cases which hold that mandamus will not lie to direct or control agencies or individuals who have the responsibility of discretion and official judgment.

    Coe v. City of Dallas, 266 S.W.2d 181, 182 (Tex. Civ. App. 1953).

    Law enforcement agencies have the discretion to decide what matters to investigate and what actions to take based on the investigations that they do. You cannot compel an agency to undertake a criminal investigation.

    I thought I read that Mandamus was used to compel an agency to perform /complete their duties. Which would be to enforce the support order per my request 1 1/2 years earlier; Inspector General to complete and report their findings of investigation pertaining to a report submitted months ago.
    I never thought I would be able to file anything other than the motion to enforce because of my limitations, but if I had the time and understanding of the many riddles posed by legal jargon I would if after my research it was found I could.


    I agree 100% but cannot afford to, see note of the OAG wrongly taking action above, which I intend to pursue against advisement from all attorneys I have spoken with. Why is that? They were wrong and I have long-lasting irreparable loss due to their actions. I have the file, but not the call transcripts, it would seem to be obvious. Yet they stand silent, waiting for judgment against me so they can try and bury their mistake with me.
     
  17. Tax Counsel

    Tax Counsel Well-Known Member

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    That's a little unclear. You were given the right to designate what, exactly? The home in which the child resides? And while you had that power, did you have the right to possession (custody) of the child? The Texas habeas corpus provision for child possession (which is an unusual way to do it, I don't know of any other state that uses habeas corpus this way) is designed to return a child to the person entitled to possession of the child. If you don't have the right to possession but merely can designate the home for the child, that might not be something you can address in the habeas corpus action. You'd want to review all the facts and the applicable court orders with a family law attorney to make sure you are attacking this the right way. I've not read the orders in your case and don't know the details of what is going on to say what approach you'd need to use.

    It is — but only for ministerial duties, i.e. duties that don't involve discretion on the part of the agency officials involved.

    The court cannot substitute its discretion for the discretion of the agency officials. Put another way, a court cannot decide that it would exercise discretion differently than the agency and compel the agency to do things the court's way. It's not the job of the courts to decide how agencies should be run. Law enforcement agencies have the discretion to decide what things they will investigate and what things they won't, and for the investigations they do decide to take up, they have the discretion to decide how fast to do it and what resources to put into it. While a judge might make a different decision if he/she was running the agency, the judge cannot impose his/her choice on the agency.

    If there is a statute that says an agency must do something no matter what — no discretion given to the agency at all — and the agency fails to do what the statute requires, that is a good situation for mandamus.
     
  18. Red Kayak

    Red Kayak Well-Known Member

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    Forgive for being blunt, but: YOU are the RESPONDENT. Therefore most of what you are blathering about is irrelevant.

    The priority of any respondent should be to RESPOND to the issue that they are being brought to court on. Your letter(s) and negative comments about your ex will derail you before you even start. You have to first address the issues that are being brought against you.

    For example, if you haven't "abandoned" your child, and are actively parenting, you should focus of proving that.

    For example, if you want to show you aren't a druggie, offer to take drug tests.

    Court is more like baseball than hockey.
     
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  19. Purdan

    Purdan Law Topic Starter New Member

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    Thank you for the response, I wish I had found this site sooner. I annoy myself when I try to explain this situation from my perspective. I've tried and failed repeatedly to obtain legal assistance. I have been trying to learn how to do it correctly. To learn a new sport, involving a completely different skill set, mechanics, rules, strategies, and being expected\required to meet a standard in order to defend\preserve my life in a limited amount of time has been overwhelming, to say the least. I have failed in my approach to making the adjustments needed to become a proficient learner.
     
  20. Purdan

    Purdan Law Topic Starter New Member

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    Last edited: Aug 11, 2021

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