Experience with Ex Parte Orders

[Silverplum]

The problem with going Pro Se, the problem with not having a lawyer to help you is this: the representative of each party (which would normally be a lawyer) is expected to know all procedural rules of the court. For example, what the Latin words mean, what the LAW is (!!!), how to file complaints or affadavits, how the court actually works, how to schedule, etc. These skills belong to lawyers -- they studied, they went to school, they did internships, etc. Your doctor has doctor skills; plumbers have plumbing skills; etc.

Thus the problem you are having in court, with the judge, etc. are a direct result of not knowing the law, and/or court procedures and rules. You need to study A LOT to represent yourself.

Look on YOUR state's Bar Association website, or the Court's site -- see if they have something about Court Rules and Procedures. For example, in my state of Colorado, there's this page by the Courts:
http://www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm
Notice the darker gray box on the right has links to "Representing Yourself In Court," "Court Rule Changes," and the like.
And the Denver Bar Assn.'s "Public Interest" page, with links to brochures and the dates/locations of free legal clinics:
http://www.denbar.org/group/index.cfm?EntityID=DBA&category=1102

 

[blondi]

I live in NC and am going through similiar situation. I am representing myself and have encountered similiar wall and deadends because I do not know the procedure or rules of the game that lawyers do. I have found information on this along with forms at the following links.Good Luck! http://www.abanet.org http://www.nolo.com http://www.hg.org/ http://www.divorcesupport.about.com

http://www.about.com

 

[casa]

Casa.. . and Ambr. I now understand better... 'declaration' I know of. I guess it was just the terminology. Do you know if I can have these submitted at any time? Will the judge have to look at these? Or can he do the same as when I had people subpoenad? I understand how to do that, it was a lengthy process, but I accomplished it on my own.
The reason for the evaluation is the father accused me of being unstable....so the judge ordered. There have been times I've had to call the police on him, for assaulting me while my children are with me, at pick up and drop off times. ... but once the police have arrived, he and his wife get their innocent faces on and lie so well, that the whole thing has turned around on me.
Everything I've said, or requested in court has been looked past or denied. That is what I don't understand. I feel like just because I am representing myself, the judge is taking advantage of that. I have not gone to the second evaluation yet, as I had to have a copy of the court order to show the doctor. I just received that in the mail, so now I am able to schedule that.
Is there a certain way to ask for a trial?

Yes you can file them at anytime (though courts have a certain number of days prior to any hearing that they must be filed- so get them filed ASAP) Take the signed declarations to the court and file them-(The declaration form can be obtained at the court clerk's office as well.)you will need to have 2 copies in addition to the original you file with the court. 1 copy for your own personal file and 1 copy to be served on the other party. Ask the court clerk for Proof of Service form, which will explain to you how to 'serve' the other party with the copies. Yes, the judge reviews anything filed on the case.

 

[LostWithoutHER]

Casa....

Great... thanks Casa. I will get on this... and hopefully have enough time before court is scheduled. We are set to appear the seventh of March. ... and I have found the courts usually want fourteen days to give notice before a hearing/status conference.

I have the Michigan web page... which has been very helpful. But, as I understood. . ..if a person was subpoenad, then they had to appear and be heard at that time. I don't recall seeing anything that stated there were any specific times you couldn't have persons subpoenad. That part doesn't make sense to me.

Blondi- best of luck to you. I am searching my options for an attorney. I have been burned in the past .. . .but, I guess sometimes you have to start over, and perservere.

Ambr- thanks for the forms. .. very helpful!

Silverplum.... you are right. This makes more sense to me. I don't understand the law, or the hoops to be jumped through. That is why I am stuck! ! ! And, I don't have the time to commit to solely study up on these things. I can't see how anyone would. I may very well have changed my major .. . but truthfully, I have no interest to be a part of such a thing. I am on the other hand studying government...which I think needs a lot of changes in the family division. My child was taken away un rightfully. ... due to an ex parte order.. . which was COMPLETE lies! There was no truth to it whatsoever.. . but, the judge won't hear me to prove that. It has become very frustrating.

 

[LostWithoutHER]

Still looking. .. .

For ideas and suggestions, and anyone who might understand the ex parte orders more in depth. I am grateful for the responses I have received thus far. Thanks so much!

 

[casa]

For ideas and suggestions, and anyone who might understand the ex parte orders more in depth. I am grateful for the responses I have received thus far. Thanks so much!

ex parte orders are basically emergency/temporary orders. Your X got one by convincing the judge he had good cause. Now you have to go through the process of responding and addressing the allegations. You didn't say what they were, so it's hard to help you any more in depth. ie; if you were accused of using drugs- submit to drug testing. if you were accused of not getting your children to school, submit attendance reports etc.

 

[LostWithoutHER]

Elaborate on ex parte reasons. .

To elaborate on the request for an ex parte order... my x claimed that I was erratic at my daughter's school. Thus, I subpoenad the school principal and counselor, in which he stated, on the record that the counselor had called his attorney stating I was erratic, and demanding counseling for my child's 'problems'. Whe I had subpoenad these people, the judge wouldn't even consider listening to what they had to say. The principal is willing to help, verifying the accusations are false, but reluctant to give any info to me. .. .only to an attorney in which I don't have. So, I have attempted to clear the accusations, and the judge refused to aknowledge my attempt.

 

[casa]

To elaborate on the request for an ex parte order... my x claimed that I was erratic at my daughter's school. Thus, I subpoenad the school principal and counselor, in which he stated, on the record that the counselor had called his attorney stating I was erratic, and demanding counseling for my child's 'problems'. Whe I had subpoenad these people, the judge wouldn't even consider listening to what they had to say. The principal is willing to help, verifying the accusations are false, but reluctant to give any info to me. .. .only to an attorney in which I don't have. So, I have attempted to clear the accusations, and the judge refused to aknowledge my attempt.

Are you saying an attorney is lying in court stating a conversation happened with the school counselor, when it never happened?

What, specifically, did the X say you did at the school? "Erratic" is a fairly broad description- could mean any number of things.

If your child sees a counselor, do you mean the school counselor or a therapist outside of the school? If it's the school counselor, then take the child to a therapist outside of the school- so you'll have another professional weighing in on if your child is having 'problems' or not. (What 'problems' did the counselor <supposedly> refer to?)

What does the school counselor say? You say the principal is willing to tell the court what did/didnt happen- but the allegation is about what the school counselor said. What do they say now, or to you? Also, what other "information" is it that the principal is reluctant to give you?

You can research online the requirements in your state to subpoena someone- An attorney isn't always the only one who can subpoena someone. Did you get a copy of your court file? Do you know if the subpoena for the principal was only for your last court date- or does it include the March court date?

It would seem to me (though I'm not a judge) that if you say the Xs allegations are untrue- the burden will then be on your X to prove they are. If it never happened, how is he going to do that?

Did you file a response to the Xs allegations? If so, did you include in your response that the allegations were untrue & that the principal and counselor are willing to testify that they are untrue?

 

[Ambr]

It might not be that they are reluctant to help --- most of the people I have met through the school systems would love to get involved to help with a child ---- they just like that little piece of paper (subpoena) that says they have to.

Makes it easier on them when dealing with the other parents, in other situations.

 

[LostWithoutHER]

Casa.. ...

Casa:Are you saying an attorney is lying in court stating a conversation happened with the school counselor, when it never happened?

LostWithoutHER:Yes... this is what I am saying! ! ! ! There was nothing, let me say it again, nothing erratic about my behavior. My daughter had a wonderful day, as did I . ... and her classmates when I volunteered that day. The father is pissed because he is too lazy- and doesn't care to participate in her education. .. so me attending school shows I care and am involved. He doesn't like this, so he had to make it appear in a negative way.

Casa:What, specifically, did the X say you did at the school? "Erratic" is a fairly broad description- could mean any number of things.

LostWithoutHER:That is what the order stated. ..was that I was 'erratic' at my child's school. He stated after that, that I 'threw her lunch away' and that she 'came home in tears' . .. let me explain. Yes, I did throw her cold packed lunch, the contents, away. I purchased her hot lunch, since for serveral weeks she had asked me why she didn't get to have hot lunch like the rest of the kids. That they have pizza days, and she is the only one who doesn't get to have it, because she is packed a cold lunch. We ate lunch together, I purchased her and I a hot lunch, which happened to be pizza that day. She came home in tears. .. I beleive it. This was a Thursday. ..and usually I would have picked her up on Friday's. .. but just prior to this... a week or so before. .. her father went to the courts to decrease my parenting time, saying that he works second shift and he doesn't get enough time with her. I was not able to make it to that hearing, I informed the courts of my circumstances. ... so, she was upset, when I was leaving, that she wouldn't see me for another week, since I didn't get to pick her up on Friday as I normally would have. The judge obviously granted his request.. .decreasing my time.. . and awarding him every other weekend. Prior to this. .. I had her every weekend and had never, ever missed a time with her.

Case:If your child sees a counselor, do you mean the school counselor or a therapist outside of the school? If it's the school counselor, then take the child to a therapist outside of the school- so you'll have another professional weighing in on if your child is having 'problems' or not. (What 'problems' did the counselor <supposedly> refer to?)

LostWithoutHER: No, she doesn't see a counselor, her father will not allow this. I called the school, spoke to the counselor briefly asking if she would talk to my daughter. I stated we are involved in a custody battle, and she could use someone to talk to. The counselor told me that she would have nothing to do with that, that she would not get in the middle of it. I voice my concerns, that if she is a school counselor, it is my understanding that if one reaches out, or expresses concerns, she should aknowledge that. I thanked her for her time and that was the end of the conversation. As of now.. .since his ex parte order was granted.. .. due to the 'erratic behavior'. .. I am only allowed to see her under 'supervised' parenting time. .. at a designated place. ..and not leave with her anywhere. I can't take her to a counselor. CPS is involved. .. due to an allegation against the father's wife. ...in which my daughter confided in me that she was being hit and pushed and shoved. The CPS worker urged counseling. ..and still they have not done this.

Casa:What does the school counselor say? You say the principal is willing to tell the court what did/didnt happen- but the allegation is about what the school counselor said. What do they say now, or to you? Also, what other "information" is it that the principal is reluctant to give you?

LostWithoutHER:The school principal has stated to me over the phone when I called to schedule further volunteering at the school. ..that there was an order in place saying I was not allowed to. I was not served with these ex parte papers. . I was only aware of them due to this occurence. I then had to go to the court to pick up the papers. .. .in which it would have been his attorney's job to serve me. Once I sent the principal a copy of the allegations, she verified that those were false allegations. ..and she would do what she can to help, but only if an attorney requests something. The counselor was brought up in court, when the father's attorney did not show up, he had to speak for himself. I asked where his proof was that I was erratic, and he stated the counselor called his attorney telling them that I had to be removed from the school. This is absolutely NOT true! I was never asked to leave. . .the day was wonderful. ... to all involved! I have not spoken to the counselor since this. ... I have spoken to the principal who stated she did not know of a reason the counselor would call their attorney. ..or why she would have done that.. .or how she would have know who their attorney was.

Casa:You can research online the requirements in your state to subpoena someone- An attorney isn't always the only one who can subpoena someone. Did you get a copy of your court file? Do you know if the subpoena for the principal was only for your last court date- or does it include the March court date?

LostWIthoutHER:I prepared the subpoenas myself. .and served them certified mail. It was only for the February date. ..and not March.

Casa:It would seem to me (though I'm not a judge) that if you say the Xs allegations are untrue- the burden will then be on your X to prove they are. If it never happened, how is he going to do that?

LostWithoutHER:He has no way to prove his allegations.. as their is absolutely no truth to them. He goes about things lying. .and that has kept him on the up side. His attorney lies. .and that has kept her on the up side. I am not a liar, I will not lie to win.

Casaid you file a response to the Xs allegations? If so, did you include in your response that the allegations were untrue & that the principal and counselor are willing to testify that they are untrue?

LostWithoutHER:Yes, I filed a response to the allegations. That is why we were back in court February. I did not include that in my response, as I thought that subpoenaing the people would 'prove' that rather than talk about it.

 

[casa]

LostWithoutHER:Yes... this is what I am saying! ! ! ! There was nothing, let me say it again, nothing erratic about my behavior. My daughter had a wonderful day, as did I . ... and her classmates when I volunteered that day. The father is pissed because he is too lazy- and doesn't care to participate in her education. .. so me attending school shows I care and am involved. He doesn't like this, so he had to make it appear in a negative way.

LostWithoutHER:That is what the order stated. ..was that I was 'erratic' at my child's school. He stated after that, that I 'threw her lunch away' and that she 'came home in tears' . .. let me explain. Yes, I did throw her cold packed lunch, the contents, away. I purchased her hot lunch, since for serveral weeks she had asked me why she didn't get to have hot lunch like the rest of the kids. That they have pizza days, and she is the only one who doesn't get to have it, because she is packed a cold lunch. We ate lunch together, I purchased her and I a hot lunch, which happened to be pizza that day. She came home in tears. .. I beleive it. This was a Thursday. ..and usually I would have picked her up on Friday's. .. but just prior to this... a week or so before. .. her father went to the courts to decrease my parenting time, saying that he works second shift and he doesn't get enough time with her. I was not able to make it to that hearing, I informed the courts of my circumstances. ... so, she was upset, when I was leaving, that she wouldn't see me for another week, since I didn't get to pick her up on Friday as I normally would have. The judge obviously granted his request.. .decreasing my time.. . and awarding him every other weekend. Prior to this. .. I had her every weekend and had never, ever missed a time with her.

LostWithoutHER: No, she doesn't see a counselor, her father will not allow this. I called the school, spoke to the counselor briefly asking if she would talk to my daughter. I stated we are involved in a custody battle, and she could use someone to talk to. The counselor told me that she would have nothing to do with that, that she would not get in the middle of it. I voice my concerns, that if she is a school counselor, it is my understanding that if one reaches out, or expresses concerns, she should aknowledge that. I thanked her for her time and that was the end of the conversation. As of now.. .since his ex parte order was granted.. .. due to the 'erratic behavior'. .. I am only allowed to see her under 'supervised' parenting time. .. at a designated place. ..and not leave with her anywhere. I can't take her to a counselor. CPS is involved. .. due to an allegation against the father's wife. ...in which my daughter confided in me that she was being hit and pushed and shoved. The CPS worker urged counseling. ..and still they have not done this.

LostWithoutHER:The school principal has stated to me over the phone when I called to schedule further volunteering at the school. ..that there was an order in place saying I was not allowed to. I was not served with these ex parte papers. . I was only aware of them due to this occurence. I then had to go to the court to pick up the papers. .. .in which it would have been his attorney's job to serve me. Once I sent the principal a copy of the allegations, she verified that those were false allegations. ..and she would do what she can to help, but only if an attorney requests something. The counselor was brought up in court, when the father's attorney did not show up, he had to speak for himself. I asked where his proof was that I was erratic, and he stated the counselor called his attorney telling them that I had to be removed from the school. This is absolutely NOT true! I was never asked to leave. . .the day was wonderful. ... to all involved! I have not spoken to the counselor since this. ... I have spoken to the principal who stated she did not know of a reason the counselor would call their attorney. ..or why she would have done that.. .or how she would have know who their attorney was.

LostWIthoutHER:I prepared the subpoenas myself. .and served them certified mail. It was only for the February date. ..and not March.

LostWithoutHER:He has no way to prove his allegations.. as their is absolutely no truth to them. He goes about things lying. .and that has kept him on the up side. His attorney lies. .and that has kept her on the up side. I am not a liar, I will not lie to win.

LostWithoutHER:Yes, I filed a response to the allegations. That is why we were back in court February. I did not include that in my response, as I thought that subpoenaing the people would 'prove' that rather than talk about it.

It seems a likely possibility that the counselor (when contacted by father's attorney re; ex-parte order- which seems to include an order of restraint) told the attorney that the child should be in counseling. This is because you asked the counselor to assist your child based on your own concerns- that type of counseling was outside the realm of the school counselor's job, it is inside the realm of the father since he is the one with legal custody (at least for now). So, it may not be entirely true that they are LYING- though it seems father has put his own 'spin' on the issue.

You need to file a sworn declaration stating you had subpoena' the principal and counselor to testify that the allegations the father made were untrue- but that were not able to be heard at the previous hearing.

In another paragraph, address the issue with the counselor in that "Perhaps" what the father is referring to is the fact that since He refused to consent to your child being in therapy- you contacted her school counselor to see if you could establish some support for her during this time, and you were then advised by the counselor that she could not do this. Address the fact that CPS has told you that they urge counseling also, but that you are unable to get consent for this from the father. CPS can urge whatever they like, but a judge will make the decision. Unless CPS outlines a caseplan for the father and he refuses to abide by it, then he doesn't legally have to do it.

In another paragraph address the issue re; her lunch. That you had volunteered at school that day and you and your child decided to purchase pizza and therefore threw the packed lunch away. (Sounds like she said to her father she ate pizza and he was upset- asking her where her lunch was- and she responded you had thrown it away. Being questioned by an upset parent like that, WOULD make a child tear up).

The reason the judge granted his request to decrease your parenting time- is that you didn't show up. He won by default. Why would you not show up at a scheduled court date? It demonstrates to the court that you don't care about the issue at hand &/or that you don't take court proceedings seriously.

What are the circumstances behind the father having custody in the first place? Some of those issues may be coming to play in all of this.

 

[LostWithoutHER]

New news....

An update....and then I can elaborate on the original circumstances of the custody issue.

I received a letter in the mail today, from my x's attorney. Reads as follows:

Dear Ms. LostWIthoutHER,

My clients want to try to work through the issues with (daugher) without constant trips to Court. They have asked that I relay the following proposal to you:

1) You have visitation every other weekend unsupervised from Friday at 6pm until Sunday at 6pm.
2) We withdraw our Order regarding school.
3) You do not remove child from the school premises at any time.
4) We agree to forego the necessity of a psychological exam.
5) You agree to pay scheduled child support.
6) You stay in your vehicle during parenting time exchanges.

Please advise us of your response in writing.

Sincerely,
Attorney. ... .

I left out names, for confidentiality purposes. ... the letter reads exactly as written.

In December at a court hearing, the father waived all child support owed by me from the date that he was awarded custody. This was June of 2003. The Friend of The Court neglected to process an order that I was to start paying child support, and I had no idea that had taken place. I wasn't aware as to why I wasn't being given proper paper work etc. I brought the issue to the FOC's attention. .and x waived all past due, and any further child support. Now, he wants it.
In the beginning of February, it was stated in court that he is laid off. . .and couldn't afford to pay his obligation of half of the psychological evalution that he was requesting. Thus, I feel he is wanting support now based on that reason.
As far as the school counselor, the order restraining me from the school was after I had spoke to the counselor. The father and I have always had shared legal custody. ..and he has had temporary physical custody since June 2003. She was born in '98 and I had custody of her up until that point.

Reasons for change of custody. ... .were due to a seperation with my fiance at the time. ...whom I have two children with. During the seperation I went through a time of depression, and my x fiance went out of his way to make things very difficult for me. He had called the police on the night he was ending things with me. ..and stated that I was suicidal . ..in front of my children. Again. .these allegations were not true. I was very upset. ..and was forced to go to the hospital...and once this occured . ..he called my previous x. ..father of my oldest child. ..and started the whirlwind and chain of bad events. I have seen a therapist for much of my life. ..as a child of 7 my father passed away and I was deeply affected. I have several doctors. .. and therapist who would say that I am of sound mind. ..and perfectly capable, willing and able to mother all of my children. Again, I have custody of my two youngest daughters.

We are scheduled to appear in court on March 7. ... and I'm not sure how to proceed. I am working on getting an attorney, but have been out of work. .and very soon to go back. In the meantime I am in college.

Casa. ..you've been great at offering thoughts. ... I appreciate your help! Your time invested in just reading through this is very kind.

 

[LostWithoutHER]

Anyone on ?

Just wondering if anyone is on this late. .... and read my update. .. .