MEDC, writing her a letter like won't help anything. She'll just laugh and say, yeah, so what? If anything his LAWYER needs to put the gist of that into a motion requesting the return of the child and spelling out the reasons why (no feelings involved). They have temporary orders in place, a letter to her like this won't mean diddly-squat. They JUDGE needs to ORDER the child home but he won't unless someone (hint-hint) puts it in front of him to consider.

But I agree... your lawyer saying wait until the end to fight it out???!? Uh-uh. No way. You needed to get that ball rolling like yesterday.

There are no temporary orders -yet-...

As far as waiting till the end.. I've told my lawyer that won't work for me... and so we filed a counterclaim stating that we wanted primary physical custody during the course of the D.

That's the judge we're waiting on now.

My bad, I forgot you had a stipulated agreement. If I were you though I'd rescind that agreement and file a motion requesting temporary orders in your favor.

So are you waiting for "a" Judge to rule? Has a motion been made? Your counterclaim WOULD ask for custody but unless a motion's been made the Judge has nothing to rule on until the final hearing. Please explain the thing you said earlier about waiting for a judge. I don't get that.

PM...I am of the strong belief that he should not return the child to that house unless ordered by a court to do so. Right now she has no legal leverage to remove that child from his home. If I were called to the scene as a cop...no orders are in place...the child stays at his home.

My reasoning for the letter is NOT thinking she would abide by it...it would be a document that could later be introduced into the record which clearly displays his desire to have his son home with him. To date, his actions have indicated otherwise.

Okay, I see. You're right. It would create a record but at this point, he probably should run it by his attorney. And if he sends it, he'd need to send it certified AND regular mail to prove she received it. Otherwise, she'll just say what letter Judge?

The only legal leverage I see is the stipulated agreement. BUT... wasn't it made before he knew the whole story? It would be pretty bold to keep the child, especially since he's gone along this long. Police probably would be called and drama would ensue. But it also may be a way to force the issue in front of a judge. But it'd also be really traumatic for the child. I dunno.

Jamesus, sorry for the T/J.

Ok...

well to catch our legal eagle up.. we did squash the Stipulation in Lieu..

And we filed a motion for temporary custody.. that's what we're waiting on the judge for now.

This is as I understand things.. probably best to have my Lawyer even send this message to her lawyer.. I'm sure it'll be just as binding as her asking me to stop contacting her family, but at least there will be documentation.

[quote But it'd also be really traumatic for the child. I dunno.

Jamesus, sorry for the T/J. [/quote]

This is what I worry about too.. not just the legal aspect of it, but the damage it would do to my son emotionally.

And no.. don't be sorry for the T/J.. you're talking.. I'm listening.. I need to hear these things.. especially since the paralegal in -my- life is now working against me.

The police would NOT remove the child from his home.

Also, while I see a very temorary issue with the child...it sure beats sending him into unknown waters EVERY SINGLE DAY...IMO.

How was it squashed?

Okay, so your counterclaim asking for temporary custody during the pendacy of the divorce has to be ruled on. So does hers. If there are no temporary orders in place now, then I'm with MEDC. You have as much right to that child as she does.

However, if you were to withhold the child and the police were called. There's a risk that CPS would get involved. Based on my experience with CPS (my husband as a child, my nephew we took in, etc) I wouldn't invite them into anything. But that's just my POV.

Tough call. If you want to sit tight for now and leave things as they are, you should at the least be documenting everything that happens. I guarantee you she's doing the same. At the least I would be calling the court clerk myself asking if there's been a ruling or a hearing date set. Saves you the attorney's fees to have his paralegal do the same thing.

That may be true. I guess it depends on where he lives. In the big city, the police more than likely would shrug it off and claim it's a civil matter. In a smaller jurisdiction they might be more likely to get involved.

But MEDC, it may be a temporary issue the day it happens but what if she tries the same thing?

I think CPS should have been involved a long time ago...called by James to have that house checked out.

Also...James...please remember...every day that you wait you give her another day with which she is establishing a new routine which the courts are sometimes hesitant to break.

I get that she can try the same thing...BUT remember...SHE is removing him from his home...James is returning him home.
Hey...as far as I am concerned...getting a judge involved immediately is a great thing. I got my son back in a small jurisdiction that his mom had moved to. They granted me an emergency petition within an hour of my setting foot in the door. I told my story to a receptionist ...she walked me over to the appropriate person and an emergency hearing was issued...I hope it is a small jurisdiction. I told James weeks ago to just walk into the courthouse himself and he will find someone that would help him.

And the police have no authority get involved no matter the size of the jurisdiction...imagine the lawsuit if a cop facilitated removing a child from his home without a court order. I wouldn't want to be defending that cop.

MEDC, that is SO cool. I love cases that go the way they should (in other words, justice prevails). That's what I was talking about earlier, an emergency motion. Jamesus can even do it ex parte (without the other party there because it's an emergency) which is what you did. He would just need to wait until the next time he has cause to declare it's an emergency. (i.e., he finds out child was left alone with wonderboy.)

Jamesus, what WOULD it hurt to ask your attorney to try the same thing? Tell him you'll prepare the necessary affidavit. It's a standard document where you're swearing to the points you make in the affidavit and then you have it notarized. Once a Judge ruled, it'd be hard for her to undo it.

By the way, who's paying her legal fees?

Sorry I missed all this. I just scanned to catch up.

I just recently suggested this to another person off-line.

Seeing that there is NO temporary order in place. Then, at the least, you both have equal rights to custody of the children up until the court orders otherwise.

How do you achieve that???

Well...NOTHING gives her the right to dictate custody at this time. NOTHING. YOU could actually keep the kids 100% of the time (though you'd likely be destroyed in court for doing so...despite having very legitimate reasons for doing so). I'm not completely with MDEC here. Fathers that run around making claims of crazy abusive mothers (even if they are they won't seem so in court) usually get screwed in the end. The court won't trust a father that does a ton of legal manuevering and game playing with the children...especially at this point where James has already allowed the children there so much. A big bold move of absconding the kid permanently will be seen badly...IMO.

However, since you each have equal rights and it will be impossible for your wife to actually come to an agreement for a 50-50 split (being careful to document that she won't agree) then YOU simply dictate your own plan.

Your own plan will be however many days SHE keeps your son...you, in return...will get an equal number of days with your son. She keeps them 5 days...you get them 5. Her 2..then you 2.

You've got to make this plan work. If you need help picking your son up at daycare or school...get it. Do not rely on her at all to help you with YOUR days. Of course, you will always be available to help her on her days and document the same. Eventually, she'll want help.

Now...she will go nuts. This is GOOD. You want HER to seem a completely irresponsible and untrustworthy co-parent that the court should not trust with the best interests of the kids. You remain calm. If she withholds the kids for a really long time that will just add days to YOUR custody when she does wisen up (via her attorney who will disapprove of her withholding ALL custody from you) and deliver the boy to you. IF she tries to circumvent YOUR days ...she will HAVE to steal the kid...by kidnapping him from daycare or whatever on days your son believes YOU will be getting him. This will document out very well for you if she pulls stunts to TAKE the kids back behind your back.

Plus...this doesn't require legal action. You MAY even choose to delay court proceedings to give yourself a chance to document during this 50-50 period to show:

1. You can handle 50-50
2. You should get MORE than 50-50

In time you make 50-50 the starting point in the whole custody battle. Right now...it's you getting screwed with every other weekend and wednesdays. Standard father visitation. At best you'll get 50-50...but that's even a long shot.

Take action. She has no more right than you to dictate custody right this moment.

Mr. Wondering

Oh yea...

Any "agreement" you have to date...verbal or otherwise you must firmly assert as based upon false pretenses and thus VOID.

YOU THOUGHT...she was moving in with a co-worker. You had NO IDEA her son was the OM and that she'd be living, with your son...with a paramour (an illicit lover).

You stand firm that you were duped and that agreement is NOT binding upon you.

She's perfectly within her rights to show it to the judge at the temp custody hearing ...if she does have something in writing...but until the judge orders otherwise it's equal time for both of you....PERIOD.

Mr. Wondering

p.s. - If she becomes amenable to then negotiate. Great. She's then agreeing to throw away any prior agreement and negotiate again...with all the new facts. Then...maybe you agree to something like 4 days...4 days which necessarily rotates weekends and makes things more difficult for her. Again...YOU handle all your time with the kids. Absolutely do not rely on her for anything. Demonstrate you can handle it.