OH Parent needs help in appealing Forced GPV

[Smith5]

Yes I do think that he would violate a court order and are you not understanding that the grandfather and father have separate weekend visitations in the same household? Do you even comprehend that no matter what my daughter is still being exposed to a unhealthy environment. Even both lawyers said that it is difficult to prove if the grandfather violates the court order. My daughter's father is still a drunk no matter who is in the house and the grandfather will not stop the behavior as he has well proven before when I allowed visitation without restrictions. What would you like me to do, let him kill her in a drunken rage, then I would have to live with the fact that I had to bury my 5 year old child because a magistrate thought that he knew what was better for my daughter than I? I on the other hand have not done anything to warrant such an order. I have not even been proven an unfit parent. What would you do or to what extend would you go to if it were your child in potential harm? It only takes a moment of rage and recklessness to do the unimaginable, but I'm sorry doesn't fix anything when it's too late.

 

[BelizeBreeze]

Yes I do think that he would violate a court order and are you not understanding that the grandfather and father have separate weekend visitations in the same household? Do you even comprehend that no matter what my daughter is still being exposed to a unhealthy environment. Even both lawyers said that it is difficult to prove if the grandfather violates the court order. My daughter's father is still a drunk no matter who is in the house and the grandfather will not stop the behavior as he has well proven before when I allowed visitation without restrictions. What would you like me to do, let him kill her in a drunken rage, then I would have to live with the fact that I had to bury my 5 year old child because a magistrate thought that he knew what was better for my daughter than I? I on the other hand have not done anything to warrant such an order. I have not even been proven an unfit parent. What would you do or to what extend would you go to if it were your child in potential harm? It only takes a moment of rage and recklessness to do the unimaginable, but I'm sorry doesn't fix anything when it's too late.

The simple fact is unless there is a mistake of law upon which the visitation order was promulgated, you can't appeal.

The order stands as written. END OF STORY.

 

[LdiJ]

The simple fact is unless there is a mistake of law upon which the visitation order was promulgated, you can't appeal.

The order stands as written. END OF STORY.

And in this case there was a mistake of law....as outlined by the Ohio Supreme court...the magistrate applied the wrong standards in making the decision.

However, this is an appeal of a magistrate's decision. Its being appealed to the judge overseeing the magistrate. The judge will re-hear the case. In that scenario an error of law isn't required. Mom simply has the right to appeal the decision to the judge.

 

[BelizeBreeze]

And in this case there was a mistake of law....as outlined by the Ohio Supreme court...the magistrate applied the wrong standards in making the decision.

However, this is an appeal of a magistrate's decision. Its being appealed to the judge overseeing the magistrate. The judge will re-hear the case. In that scenario an error of law isn't required. Mom simply has the right to appeal the decision to the judge.

That is not a mistake of law. That is well within the magistrate's discretion.

 

[rmet4nzkx]

Rmet, read the language of her order again, you are totally misinterpreting the order. The magistrate is NOT giving the grandfather the right to exercise dad's visitation time, the judge is giving the grandfather his OWN visitation.

I read the order AND the circumstances, I put that in all caps, DAD LIVES WITH GRANDFATHER!!!!! I then quotes the language in grandfather's order re violence etc. which could afect dad as that is his place of residence. mom is trying to enforce a restraining order that has never been ordered and by her actions and that is CONTEMPT.

My reference was also to what the judges further orders.

When I asked the magistrate if I had to separate the father/grandfather's visits he said "should the father choose to exercise his right to visitation then I could not deny him nor could I not deny the grandfather his now court ordered visitation".

Grandfather has had to go to the time and effort to get a visitation order even though dad has an order because mom is denying the visits, mom know dad lived there, mom is in contempt, now if anything, with the two orders, if dad's order doesn't have the no violence etc language, GF's does and the child is protected. NOW do you understand???????????????

Grandpa filed for grandparent visitation rights.

Only because mom was denying both GF his continued visitation because mom was denying dad the right to be present in his residence when he already had a visitation order because he was present, mom has admitted it is a custody battle. The court knows exactly what is happening and getting sympathy from you won't change the facts that mom is in a custody battle and in CONTEMPT.

I also can find no indications in any of her posts that dad lives with grandpa, only that dad has been at grandpa's home on occasion.

As usual you only read what you want that supports your biased personal opinion rather than an objective review of the facts.

her father only has standard visitation. Her father has separate visitations from her grandfather...which is to say that they have EVERY weekend now. Father does not exercise his visitation which is not to say that he would not in the future which I find to be problematic since I am the one who would have to change the order. We are not on a control trip...and yes I want to be able to control what type of environment my daughter is exposed to...one that does not contain drunken violent behavior on a continual basis. .... The grandfather is the one who is upset that I stopped visitation at his home which is due to the fact that his drunk son also lives with him and he will not stop the behavior that I find appaulling while his granddaughter visits...the father could care less if he ever sees his daughter. If she dropped off the face of the earth, he would be most happy due to the fact that he could stop paying child support. ************** The grandfather's visitation should happen only during his son's visitation should his son decide to be a father rather than a drunken burden on our society. Who are you to say that I cannot judge who is fit/unfit to visit with my daughter ....

Right now mom is in contempt the reason for the order, please take the time to read the posts in the future.

The magistrate also made it clear that grandpa's visitation was separate from dads. That would not be necessary if dad lives with grandpa. What's more, he gave grandpa the equilvelent to parental visitation which means that should dad decide to exercise his court ordered visitation that mom would have no weekends or holidays with her child.

Ah contrae, as seen in the quote above dad lives with gp and because mom denied all visitation, the judge said if mom want's to modify the visitation schedules e.g. if dad enforced his visitation so that the child visited every weekend, then she can file for that in the future, gp filed this motion, that does not prevent mom from filing in the future, currently is isn't an issue. Who knows, dad may join AA become a recovering alcoholic and file for shared custody! ANything is possible, but right now mom needs to focus on the best interest of the child and not on her custody battle.

The magistrate's order does not indicate that the judge gave any weight to the fit mom's decision regarding visitation with grandpa. The judge gave only two facts of finding, 1) that the grandfather was not dangerous to the child and 2) that visitation was in the child's best interest. The Ohio Supreme Court has made it clear that that isn't good enough.

We don't have the full order or access to the transcripts or evidence, however one can assume when the court makes a finding of fact:

Finding of Fact:
Visitation of grandchild with grandfather presents no danger to child, and would be in the best interest of the child.

to which you referred, and base your assumption on the fact that grandfather's home was not also dad's residence, nice try, no cigar, there is no finding of unfitness in mom, dad, grandfather, and visitation is in the child's best interest. That is why I advised that if there is any real abuse happening petition the court to appoint a GAL.

What's more, it is her legal right to appeal to the judge if the case has been ruled on by a magistrate.

Really? OP didn't give us her county so we could review their local rules of court to determin the process for challenge or appeal, she can't just appeal because she didn't like the order, she was represented by counsel.

Rmet, for once you need to leave your own bias at the door and recognize that this magistrate made an exceptionally bad order. Had he stated that grandpa could share dad's visitation, or that grandpa got a day once a month and time around holidays you would be closer to being correct. (but still not entirely correct) However, that is not the case.

I do leave my bias at the door that is why I can read and examine the evidence objectively. Just because an order doesn't match your personal biased opinion and agenda doesn't mean it is a bad order. The judge made the order knowing dad and GP live in the same home and did not find mom's evidence compelling enough to, find dad unfit, change dad's visitation and/or order supervised visitation. Since YOU made the incorrect assumption that dad and GP lived separately and that I can't read, YOU made many incorrect assumptions and in turn gave incorrect advice. What mom wants is for dad to not be present in his own residence when GP has visitation, she does not want dad to visit at all. I also suspect that her husband may be prioviding some 3rd party interference.

 

[stealth2]

I also can find no indications in any of her posts that dad lives with grandpa, only that dad has been at grandpa's home on occasion.

Well, first she says:

The grandfather is the one who is upset that I stopped visitation at his home which is due to the fact that his drunk son also lives with him and he will not stop the behavior that I find appaulling while his granddaughter visits...

And then (although this was after your above-quoted query:

are you not understanding that the grandfather and father have separate weekend visitationsin the same household?

 

[stealth2]

Ah contrae

Just my own nit to pick - don't use phrases unless you know both what they mean and how they're spelled, not just phonetically. I believe you meant to say "au contraire" or "to the contrary".

 

[rmet4nzkx]

Just my own nit to pick - don't use phrases unless you know both what they mean and how they're spelled, not just phonetically. I believe you meant to say "au contraire" or "to the contrary".

Caught, thanks for the correction, I didn't think Ldij would catch it

 

[LdiJ]

That is not a mistake of law. That is well within the magistrate's discretion.

You and I are going to have to disagree with that one. I have read all case law, in all 50 states since Troxel (on this issue), and every case that has been overturned (Troxel included) was based on the judge applying incorrect standards...or the law being too broad to be applied constitutionally.

 

[LdiJ]

Well, first she says:



And then (although this was after your above-quoted query:

I went back and re-read her posts before I made that response......I must have missed the first one. Ok...dad lives with grandpa. As far as I am concerned that's another reason why grandpa didn't need his own separate visitation. All grandpa had to do if he wanted to see the kids was to kick his son in the butt so that he exercized his visitation, even if all he did was turn them over to grandpa.

 

[LdiJ]

Caught, thanks for the correction, I didn't think Ldij would catch it

It not my habit to correct someone's grammer or usage of foreign terminology.
However, since I happen to speak some French, and read it well, I did catch that.

 

[LdiJ]

I read the order AND the circumstances, I put that in all caps, DAD LIVES WITH GRANDFATHER!!!!! I then quotes the language in grandfather's order re violence etc. which could afect dad as that is his place of residence. mom is trying to enforce a restraining order that has never been ordered and by her actions and that is CONTEMPT.

My reference was also to what the judges further orders. Grandfather has had to go to the time and effort to get a visitation order even though dad has an order because mom is denying the visits, mom know dad lived there, mom is in contempt, now if anything, with the two orders, if dad's order doesn't have the no violence etc language, GF's does and the child is protected. NOW do you understand???????????????

Only because mom was denying both GF his continued visitation because mom was denying dad the right to be present in his residence when he already had a visitation order because he was present, mom has admitted it is a custody battle. The court knows exactly what is happening and getting sympathy from you won't change the facts that mom is in a custody battle and in CONTEMPT.

As usual you only read what you want that supports your biased personal opinion rather than an objective review of the facts. Right now mom is in contempt the reason for the order, please take the time to read the posts in the future.

Ah contrae, as seen in the quote above dad lives with gp and because mom denied all visitation, the judge said if mom want's to modify the visitation schedules e.g. if dad enforced his visitation so that the child visited every weekend, then she can file for that in the future, gp filed this motion, that does not prevent mom from filing in the future, currently is isn't an issue. Who knows, dad may join AA become a recovering alcoholic and file for shared custody! ANything is possible, but right now mom needs to focus on the best interest of the child and not on her custody battle.

We don't have the full order or access to the transcripts or evidence, however one can assume when the court makes a finding of fact: to which you referred, and base your assumption on the fact that grandfather's home was not also dad's residence, nice try, no cigar, there is no finding of unfitness in mom, dad, grandfather, and visitation is in the child's best interest. That is why I advised that if there is any real abuse happening petition the court to appoint a GAL.

Really? OP didn't give us her county so we could review their local rules of court to determin the process for challenge or appeal, she can't just appeal because she didn't like the order, she was represented by counsel.

I do leave my bias at the door that is why I can read and examine the evidence objectively. Just because an order doesn't match your personal biased opinion and agenda doesn't mean it is a bad order. The judge made the order knowing dad and GP live in the same home and did not find mom's evidence compelling enough to, find dad unfit, change dad's visitation and/or order supervised visitation. Since YOU made the incorrect assumption that dad and GP lived separately and that I can't read, YOU made many incorrect assumptions and in turn gave incorrect advice. What mom wants is for dad to not be present in his own residence when GP has visitation, she does not want dad to visit at all. I also suspect that her husband may be prioviding some 3rd party interference.

Everything that you pointed out above would have been a valid reason for the magistrate to find mom in contempt for denying dad's visitation.....assuming that dad was actually attempting to exercise his visitation. None of that is a valid reason to give grandpa his own visitation order. Grandpa could have easily resolved this problem by 1) exercising some control over his son's behavior when the children were present, and 2) kicking dad's butt into exercising his visitation....even if dad did no more than turn them over to grandpa.

In addition, if the magistrate found it necessary to give grandpa his own visitation order, because dad wasn't exercising his visitation, then the fair and equitable method for doing that would have been to use dad's time to provide that visitation to grandpa...not mom's.

As it stands, mom has orders (dad's and grandpa's) that allow her no weekends or holidays with the children. I have seen many visitation orders, including orders that were pre-Troxel, overturned or modified on that issue alone.

The transcripts for that hearing will reflect that the judge knowingly did that.

In have said this before, and I will say it again....you simply HAVE to read case law on this issue to be able to give accurate advice. I have read every case on this issue, in all 50 states, since Troxel. Its not that difficult to do...there aren't that many cases that come out each month, nation-wide.

 

[BelizeBreeze]

In have said this before, and I will say it again....you simply HAVE to read case law on this issue to be able to give accurate advice. I have read every case on this issue, in all 50 states, since Troxel. Its not that difficult to do...there aren't that many cases that come out each month, nation-wide.

No you do not. All you need ot offer a valid legal opinion on THIS matter is the fact that BOTH the father and grandfather have visitation and IF the CP refuses either one, she is in violation of the CURRENT order.

She has no grounds to appeal a magistrate's order OUTSIDE of a mistake of law and that is not something you can decide by case law. The issue can ONLY be decided on the facts of THIS case.

Now get off the soapbox. you have no idea what you're talking about.

 

[rmet4nzkx]

Everything that you pointed out above would have been a valid reason for the magistrate to find mom in contempt for denying dad's visitation.....assuming that dad was actually attempting to exercise his visitation. None of that is a valid reason to give grandpa his own visitation order. Grandpa could have easily resolved this problem by 1) exercising some control over his son's behavior when the children were present, and 2) kicking dad's butt into exercising his visitation....even if dad did no more than turn them over to grandpa.

In addition, if the magistrate found it necessary to give grandpa his own visitation order, because dad wasn't exercising his visitation, then the fair and equitable method for doing that would have been to use dad's time to provide that visitation to grandpa...not mom's.

As it stands, mom has orders (dad's and grandpa's) that allow her no weekends or holidays with the children. I have seen many visitation orders, including orders that were pre-Troxel, overturned or modified on that issue alone.

The transcripts for that hearing will reflect that the judge knowingly did that.

In have said this before, and I will say it again....you simply HAVE to read case law on this issue to be able to give accurate advice. I have read every case on this issue, in all 50 states, since Troxel. Its not that difficult to do...there aren't that many cases that come out each month, nation-wide.

YOU didn't read the facts and because you failed to do that, you gave incorrect advice. PLEASE leave your personal agenda at the door and quit advising posters to break the law and to defy lawful court orders. It doesn't matter what you have read or seen, or what you believe to be fair or that you enjoy debate, none of that is relevant. The only thing that matters here is that mom now has 2 valid visitation orders and twice the chance of being found in contempt, there are no grounds for appeal or to fire her attorney. She is in this situation because of her behaviors and actions, not that of the child's father. You do these posters a great disservice when you project your personal agenda and try to spin it rather than evaluate the case objectively based on the law and the facts in evidence. You have repeatedly been asked to stop posting when you don't know what you are talking about.

 

[tigger22472]

That order is almost guaranteed to be overturned on appeal. It is an absolute violation of the Troxel standards, and a violation of the standards set by the Ohio Supreme Court as well. The "findings of fact" are what kill it for the magistrate...as well as the fact that he is taking YOUR weekends and holidays to give the grandfather visitation, rather than dad's.

Please don't let this one pass....do the appeal because you are almost 100% guaranteed to win. That was legally a very bad order.

PM me if you want some help getting case law.

Thanks for stating that cuz I really didn't want to look and see what Ohio case law was saying..LOL I had other things to do but I seriously wondered what Ohio Supreme Court was ruling.