Temp. Visitation Order -What now?


#1

Yeah. Lawyers have a way of writing an order that you really don’t know what the heck is going on. Sounds like your lawyer is agreeing to things without your consent. (It happens!) Get everything in writing! You don’t have to DO anything that isn’t written down! However, if someone “thinks” you agreed, then I reckon you agreed! If there is a date of expiration on the “order”, then after that, you are no longer obligated. Just read the ORDER. But remember, the Court does little if one party doesn’t follow the ORDER exactly. Heck. The Court doesn’t always follow its own orders! It’s a freakin’ mess!


#2

My understanding is that a motion is a motion…it’s not an order until the judge MAKES it an order. The lawyer can’t just submit a document and make it so without your agreement and signature.

Your case sounds very complicated from what I’ve read here and in past posts. It sounds like you need to have a sit down with your lawyer and get some straight answers.

Good luck [:)]


#3

Even though the motion he sent you was not file stamped it does not mean that it was not filed with the court. It is common than an unfiled copy of the order will be served.

If the order says halfway the court till interpret that to mean halfway which would be equal miles for both of you.

Does the temporary order state that it ends in January?

He can still go to court and have a permanent custody hearing, however you are right that since he agreed to let you move it will be harder for him to force you to move back.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#4

Regarding the unfiled motion - my attorney has yet to see anything on the court calendar. If it was filed back in mid-July, wouldn’t we have seen a date on the calendar for it by now?

Yes, the temporary order only addresses visitation through MLK weekend. I think it was anticipated by my ex’s attorney that there was a hearing by January, but as I said, there is nothing on the calendar.


#5

When a motion is filed it is not automatically placed on the calendar, a hearing must be requested in front of the court. If the motion has been filed a copy would be in the court file, you can have your attorney pull the file and check.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#6

Can I pull the file? If so, do I have to be physically present to pull the file? I am in FL.


#7

I called the courts today about how to get a copy of my file when I cannot be present. I was told that the file is public and I can send anyone to make copies of items in the fle :slight_smile: Great news!

I was also told that there is a calendar call on December 19th for the motion by ex filed to modify custody, child support and visitation. The judges calendar is three weeks beginning January 27th, so I understand that on Dec 19th a date for the hearing will be set somewhere between January 27th and the following three weeks.

I am out of money and will be doing this pro se.

My ex filed for a reduction to child support and we were in court last month. He lied about his additional income, the judge did not believe him and continued the case until February 23rd and asked the CSE attorney to supoenaed financial information for that hearing (three years tax returns, bank statements, etc.)

Since my ex has filed to modify custody, visitation and child support, I will need the same financial records.

My ex also owes me about $2500 for his half of uninsured medical expenses for 2007 and so far in 2008. I was planning to file a motion to show cause, but wanted to wait until after the CSE hearing, because, again, I will need the same financial records to prove he is capable of paying me.

Can I file anything to have the show of cause for the medical expenses heard at the same time as the custody motion? Do you think a the judge for our custody case would be willing to have our hearing after the 02/23 CSE hearing on child support so that I will have all the pertinent records or do I simply have to issue a supoena myself for the records to be presented on the day of our custody case?


#8

A motion is simply a request for the Court to intervene and enter an order on the issues presented, it is not something that is filed and granted, and there must be a hearing. In this case I am certain the motion has been filed; you just may not have received a file stamped copy. There would not have been a temporary hearing if the motion had not been received by Court.

As far as the temporary order goes, make sure to read the order, it may state that you are to abide by its terms until a subsequent order is issued, and simply contemplate that that occur in January.

The temporary order does not act as a waiver to a full hearing on the case; it acts as a band-aid of sorts to provide a schedule that carries you through to the time when the Court can set aside enough time to have a full hearing on the issues. It also gives each party time to conduct discovery and otherwise prepare for trial. With respect to the effect of the order, it likely states that it is


#9

I have posted a few times, but I will lay out my situation again. I have been separated/divorced for 6.5 years. My girls are almost nine. Their father has been very disinterested all this time. He married a 1.5 years ago and has been making things difficult ever since. He is pretending to the new wife that I am keeping him from the girls, but the truth is he is not willing to exercise any kind of regular visitation because he plays in a band as a side thing.

I lost my job June 30th - company closed. I was picked up by a competitor, but it required me to move to FL. Two weeks before the move, I received a copy of a motion (July 14th) - motion was asking to prevent my move to FL, modify custody, visitation, child support, etc.

I consulted and attorney. Since I have custody and there was not set visitation order, he said I should go ahead and move. I did. Two days later (Aug 6th), I was back in NC. My ex’s attorney filed ex parte. We worked out a temporary visitation order that goes through January. The order was hand-written, read by both of us, signed and then we came before the judge. The judge read the order, made sure we both willingly agreed and then signed the order.

My ex’s attorney stated to the judge that he was going to “flesh-out” the order and submit. I told my attorney I was not comfortable with this, but he said not to worry because it would have to go through him first.

On August 27th, I received a copy of the “fleshed-out” version of the consent order that my ex’s attorney wrote. There were several things in there that I did not like the wording of, but in particular, we agreed to meet half-way for pick up and drop offs. My ex would not agree to a particular place in court that day. The order was written that we would meet half-way. My ex could pick the place, but it would be no more than a 10% deviation from the half-way point. It is approx. 520 miles between our homes. Half-way, of course, is 260 miles. A 10% variation would be 26 miles. His attorney is trying to state the 10% variation is 52 miles or 10% of the entire amount. I told my attorney what my objections were and he sent a response to the other attorney.

I have heard nothing since until last week. I received another version of the consent order, which now simply states the half-way point will be no more than a 52 mile variation closer to my ex’s home. Since there are only two more visits covered by the temporary order, so I told my attorney I did not wish to spend time and money going back and forth on this and the hand-written order entered into in court could stand as is and we could deal with it when and if my ex filed for a permanent modification to visitation.

My ex has sent an e-mail regarding our meeting for Christmas visitation and where he wants me to meet him is 309 miles for me and 197 miles for him. A 112 mile greater distance for me.

My attorney responded that I could either a) agree to the order as written or b) he could tell my ex’s attorney not to submit the order and ask that he set a court date to appeal to the judge.
It told him I would choose the later, but I am pretty sure there is no way we can be before a judge before this order is up (Mecklenburg County).

I have questions about this process.

The motion that was sent to me by my ex’s attorney - to prevent my move, modify custody, etc. was never filed with the court. No court date has ever been set. Does that mean it doesn’t exist as far as the court is concerned? If so, how did he get an ex parte hearing or is was that unrelated to the motion? Is it legal to draft a motion, send it to me and then never file it with the court?

I understand that the temporary order supercedes or original order which states “visitation as we agree” so after January there is no visitation at all.

If he actually filed a motion to modify custody based on my move, how likely is a judge to hear a motion after we settled in August with a temporary visitation order? Didn’t he, in essence, agree to the move?