Need advice on this situation

[MommaBearX3]

The attorney consult didn't go that great. I was told that my being out of state is a HUGE hurdle (which I don't fully understand-- out of state visitation is good enough for me but not for him??)

In regards to the drug use-- the only thing I could do here is request that the kids are hair tested to prove that he is, in fact, using in front of the kids. They may also accept the testimony of my 13 year old in that regard, but I really don't like the thought of having my daughter testify against her dad. I disagree with what he is doing around the kids, but he IS still their dad and I don't think a child should be put in such a position.

In regards to the history of visitation issues-- I was told that I can file contempt for each time he does it-- but its generally not much more than a slap on the wrist, particularly since I am out of state. He did say that I should have pressed extortion charges on him when he demanded extra money in order to exercise my holiday visitations-- and that I should keep that in mind for the future.

In regards to the DV arrest-- the court MAY consider it. The best thing I have on this is that the person who the offense happened TO is willing to testify (his 2nd ex wife). Problem being, during the course of that marriage, she was ALSO charged with DV.

In regards to his family testifying-- the only issue is that his mom has filed for GP rights in the past and was denied since the case is technically still held by another state-- that does NOT recognize GP rights. It would not be hard for his attorney to make her look vindictive, despite the fact that since this episode-- she has been their primary babysitter when their dad is at work.

I was told that the single best thing I have is the constant moves. He has not changed jobs during that time frame, so he cannot claim a move due to job opportunity. The school issue is also a big one.

But-- in the end, I was told that my chances aren't great and I'm staring down the barrel of paying a ton of money without a fantastic chance of results.


What would you do?

 

[Proserpina]

The attorney consult didn't go that great. I was told that my being out of state is a HUGE hurdle (which I don't fully understand-- out of state visitation is good enough for me but not for him??)

In regards to the drug use-- the only thing I could do here is request that the kids are hair tested to prove that he is, in fact, using in front of the kids. They may also accept the testimony of my 13 year old in that regard, but I really don't like the thought of having my daughter testify against her dad. I disagree with what he is doing around the kids, but he IS still their dad and I don't think a child should be put in such a position.

In regards to the history of visitation issues-- I was told that I can file contempt for each time he does it-- but its generally not much more than a slap on the wrist, particularly since I am out of state. He did say that I should have pressed extortion charges on him when he demanded extra money in order to exercise my holiday visitations-- and that I should keep that in mind for the future.

In regards to the DV arrest-- the court MAY consider it. The best thing I have on this is that the person who the offense happened TO is willing to testify (his 2nd ex wife). Problem being, during the course of that marriage, she was ALSO charged with DV.

In regards to his family testifying-- the only issue is that his mom has filed for GP rights in the past and was denied since the case is technically still held by another state-- that does NOT recognize GP rights. It would not be hard for his attorney to make her look vindictive, despite the fact that since this episode-- she has been their primary babysitter when their dad is at work.

I was told that the single best thing I have is the constant moves. He has not changed jobs during that time frame, so he cannot claim a move due to job opportunity. The school issue is also a big one.

But-- in the end, I was told that my chances aren't great and I'm staring down the barrel of paying a ton of money without a fantastic chance of results.


What would you do?

Honestly?

I would thank the attorney for being so honest with you - because there are plenty who would have taken your money and told you that you have a great shot - and regroup.

Keep documenting everything.

 

[Ohiogal]

The attorney consult didn't go that great. I was told that my being out of state is a HUGE hurdle (which I don't fully understand-- out of state visitation is good enough for me but not for him??)

In regards to the drug use-- the only thing I could do here is request that the kids are hair tested to prove that he is, in fact, using in front of the kids. They may also accept the testimony of my 13 year old in that regard, but I really don't like the thought of having my daughter testify against her dad. I disagree with what he is doing around the kids, but he IS still their dad and I don't think a child should be put in such a position.

In regards to the history of visitation issues-- I was told that I can file contempt for each time he does it-- but its generally not much more than a slap on the wrist, particularly since I am out of state. He did say that I should have pressed extortion charges on him when he demanded extra money in order to exercise my holiday visitations-- and that I should keep that in mind for the future.

In regards to the DV arrest-- the court MAY consider it. The best thing I have on this is that the person who the offense happened TO is willing to testify (his 2nd ex wife). Problem being, during the course of that marriage, she was ALSO charged with DV.

In regards to his family testifying-- the only issue is that his mom has filed for GP rights in the past and was denied since the case is technically still held by another state-- that does NOT recognize GP rights. It would not be hard for his attorney to make her look vindictive, despite the fact that since this episode-- she has been their primary babysitter when their dad is at work.

I was told that the single best thing I have is the constant moves. He has not changed jobs during that time frame, so he cannot claim a move due to job opportunity. The school issue is also a big one.

But-- in the end, I was told that my chances aren't great and I'm staring down the barrel of paying a ton of money without a fantastic chance of results.


What would you do?

803(22) Rules of Evidence. Arrests are NOT admissible. Unless of course the court decides to totally ignore the rules of evidence. In which case dad can appeal and the APPEALS COURT would most likely overturn the trial court. The school issue is a big one but what did you do when the children were NOT enrolled? Why didn't you file an emergency motion then? The fact that you did nothing and dad corrected it makes it not as strong.

 

[MommaBearX3]

I was not made aware that they were not in school. My oldest child was "grounded" from the phone (Grandma later informed me that she wasn't grounded, dad was just making sure that she didn't tell on him).. and since I don't specifically have it written in the decree to get phone conversations... I wasn't told until I went up there to visit them this past month. Daughter had a D on her report card (she is normally a great student) and I asked her what happened and THATS when I was told that she (and her brothers) started school 4 weeks late.

Whenever he is doing something he knows he shouldn't be doing.. the kids are always "unavailable" when I call. According to his mom, for years he has threatened to keep her from the kids if she tells me anything.. she says she finally decided to speak up because she feels things are getting too far out of control and would rather risk losing them than seeing things continue.

 

[Ohiogal]

I was not made aware that they were not in school. My oldest child was "grounded" from the phone (Grandma later informed me that she wasn't grounded, dad was just making sure that she didn't tell on him).. and since I don't specifically have it written in the decree to get phone conversations... I wasn't told until I went up there to visit them this past month. Daughter had a D on her report card (she is normally a great student) and I asked her what happened and THATS when I was told that she (and her brothers) started school 4 weeks late.

Whenever he is doing something he knows he shouldn't be doing.. the kids are always "unavailable" when I call. According to his mom, for years he has threatened to keep her from the kids if she tells me anything.. she says she finally decided to speak up because she feels things are getting too far out of control and would rather risk losing them than seeing things continue.

And you should have been proactive in attempting to find out their school. Did you ask dad about their schools so that you could contact them directly? Or did you just believe that he would give you all the information you needed? You should have been in contact with their teachers to keep tabs yourself. If he wouldn't give you the information, you should have gone to their last school where you KNEW they were enrolled and tracked it down. Then you could have filed sooner and forced the issue.

 

[MommaBearX3]

Hindsight being 20/20... yeah. But, I've never had a problem with getting their grades and progress reports from their father, so it never occurred to me. It also never occurred to me that he would keep them out of school for 4 weeks. I don't know WTF he was thinking-- I really don't.

Another question-- in terms of county things get a little murky (didn't think to bring this up with attorney).

He lived in Clermont county at the beginning of 2011. In March, he moved to Hamilton County. In September, he moved back to Clermont County. Which county do I file in?

 

[mistoffolees]

803(22) Rules of Evidence. Arrests are NOT admissible. Unless of course the court decides to totally ignore the rules of evidence. In which case dad can appeal and the APPEALS COURT would most likely overturn the trial court.

Just to clarify (correct me if I'm wrong) for OP's benefit:

The reason for this is the whole "innocent until proven guilty" thing. Any one can be arrested without proof of guilt, so an innocent person can be arrested. Once the person is convicted, they have been proven guilty and that may then be used as evidence.

 

[MommaBearX3]

On the arrests:

For Domestic Violence-- his arrest stemmed from an altercation in a hotel with his then girlfriend (later became ex wife number 2). They were in Washington DC for the holidays-- she declined to press charges and the city dropped the charges.

For the possession-- I don't know if he was "convicted" but I do know that he had to serve community service and pay a fine in exchange for dismissal-- so I don't know how to classify that.

 

[mistoffolees]

On the arrests:

For Domestic Violence-- his arrest stemmed from an altercation in a hotel with his then girlfriend (later became ex wife number 2). They were in Washington DC for the holidays-- she declined to press charges and the city dropped the charges.

For the possession-- I don't know if he was "convicted" but I do know that he had to serve community service and pay a fine in exchange for dismissal-- so I don't know how to classify that.

As you were told above, arrests are meaningless. Unless you can show convictions, it's not worth even trying to make an issue of it.

 

[MommaBearX3]

I know I cannot use the DV for the arrest. The attorney said it may be usable since the person he allegedly assaulted would testify in regards to the assault. The arrest itself is meaningless. I should have been more clear.

In regards to the possession-- since he served community service and paid a fine, would that not mean an admission of guilt?

 

[Ohiogal]

On the arrests:

For Domestic Violence-- his arrest stemmed from an altercation in a hotel with his then girlfriend (later became ex wife number 2). They were in Washington DC for the holidays-- she declined to press charges and the city dropped the charges.

For the possession-- I don't know if he was "convicted" but I do know that he had to serve community service and pay a fine in exchange for dismissal-- so I don't know how to classify that.

Google rule of evidence 803(22). Misdemeanors and felony 5s (convictions) are NOT admissible. Hence, arrests will not be admissible either.

803(22) is a hearsay exception that states the following IS admissible:

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of no contest or the equivalent plea from another jurisdiction), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

Other convictions and arrests are HEARSAY. Hence they are inadmissible due to hearsay.

 

[Ohiogal]

I know I cannot use the DV for the arrest. The attorney said it may be usable since the person he allegedly assaulted would testify in regards to the assault. The arrest itself is meaningless. I should have been more clear.

In regards to the possession-- since he served community service and paid a fine, would that not mean an admission of guilt?

Sounds like a misdemeanor. Hence not admissible. And how does the DV affect his parenting of the children? How did it negatively impact? And you stated he assaulted his GIRLFRIEND (who is now his ex wife) so that was HOW LONG AGO?

 

[Ohiogal]

Hindsight being 20/20... yeah. But, I've never had a problem with getting their grades and progress reports from their father, so it never occurred to me. It also never occurred to me that he would keep them out of school for 4 weeks. I don't know WTF he was thinking-- I really don't.

Another question-- in terms of county things get a little murky (didn't think to bring this up with attorney).

He lived in Clermont county at the beginning of 2011. In March, he moved to Hamilton County. In September, he moved back to Clermont County. Which county do I file in?

Venue would be Clermont County. Question: Why do you believe you are not responsible for your children not being enrolled? Because quite frankly, YOU had the responsibility of keeping tabs of YOUR children without relying on your ex. That is your job as a parent. It may not go well for you because you never did anything about it.

 

[MommaBearX3]

I've had to fight for every bit of information that I've been able to get. Medical records, school records-- you name it.

In regards to the 4 weeks-- even if I HAD known about it, in the time it would have taken the courts to hear me, they would have been in school. Not to mention, I'm not in Ohio so how would I have gone about enrolling them in school? I understand the point you are trying to make, but the logistics are more than fuzzy. When the CP refuses to give details or even inform me of changes of address, etc... how exactly should I handle that in the future? Because as sure as I am sitting here, it will happen again. I don't get notification of an address change from him-- EVER. Even at this new house, I got the address from my DAUGHTER rather than him. To be honest, I don't know what I can and cannot do about his lack of communication in regards to these things. If I did, I wouldn't be here looking for advice.

In regards to the domestic violence (I just found these things out within the past month) he was arrested in 2006 and again in 2008. The 2006 story is the one that I have the most information about. The police have been called to his house multiple times (per my children) when he and whoever he is with "get in a fight". However, I know that the police coming to the house likely means nothing, since arrests and convictions don't. I'm not as concerned about the arrests for violence against the girlfriend as I am of the pattern of anger/violence I am hearing about from his mother and from my kids. My interest in whether the DV arrest could be used was meant more to establish a pattern than to be an AHA! moment.

In regards to the drugs-- he was JUST suspended from work within the past 2 months over failing a drug test. In addition, my daughter has flat out told me that yes, he has smoked IN their presence. I would think a hair test would easily prove that. Urine would be iffy-- he is smart enough to know that once he is served he has to be more careful.


In terms of "not doing anything about it"... I do not know what I CAN and CANNOT do... I don't have thousands of dollars to throw at an attorney (wish I did, but I don't) and I don't know how to go about filing contempt charges or anything else in an Ohio court when I reside in Texas.

 

[mistoffolees]

I know I cannot use the DV for the arrest. The attorney said it may be usable since the person he allegedly assaulted would testify in regards to the assault. The arrest itself is meaningless. I should have been more clear.

You can bring in a witness to testify to what he witnessed. Your attorney is absolutely right about that part. The hard part is proving that the fact that he assaulted someone in the past that it makes him unfit to be around HIS child. That's not going to be easy.

But you have an attorney, I doubt if anyone here wants to second guess your attorney - who has all the facts and knows the judge.

In regards to the possession-- since he served community service and paid a fine, would that not mean an admission of guilt?

How do you know he didn't plead 'no contest'?