Visitation, contempt and fear


#1

My fiancé has a court order for mutually agreed visitation, but his ex-wife has not allowed him any visitation for just over 2 years and prior to that she was unpredictable as to when he could see them. They had discussed when he would return the kids from a Christmas trip to their grandparents’ house and she showed up the day before they were due back. The drive was 7 hours one way and she called him, my fiancé, back shortly after she returned home to see if he would take the kids that weekend. For more of a back story please follow the link

                               http://www.rosen.com/forum/viewtopic.php?f=2&t=9082&p=30380&hilit=mutually+agreed#p30380

Now our questions are:

Can we file a motion of contempt? If we can, how would we go about filing a motion of contempt ?

How likely is it we can get the visitation order modified to a detailed parenting/visitation plan?
Much has changed since the order was finalized and for the better in regards to my fiancé; details in the URL above.

My fiancé fears that his ex-wife will press false charges against him as she has in the past. Should he be worried since he has had no contact with her or their children although he has tried to call his kids, sent cards. He sent a schedule of days he would like to have his children and gave her the option put days she agreed upon. She never sent days back or agreed to the ones he wanted, but called and told us to never contact her, her family or her kids again–and we could talk through her lawyer.

We can not afford a lawyer as I am not working and my fiancé’s disability barely gets us by. We have talked to legal aid in Gastonia, but they continue to tell us they do not have the resources so if you know where we can find someone to help we would appreciated. Thanks


#2

The problem with court orders that specify only that visitation is to be as mutually agreed upon is that there is no default schedule. Technically the mother is not in contempt, as she has not agreed to visitation and nothing in the Order requires her to do so. I do think however that her behavior is unreasonable and in my opinion most judges would agree. I would suggest that your fiancé file a motion for modification of custody and visitation. In order for there to be grounds for a modification the moving party must show that there has been a substantial change in circumstances which affects the best interests of the child. The circumstances you present tell me that the mother’s refusal to be reasonable in allowing the child to see the children most certainly does affect their well being.

As for representation, I understand that times are difficult and lots of folks are having trouble affording attorneys in the traditional sense. Your fiancé’ may want to consider subscribing to our “DIY” service. The service provides access to forms, sample pleadings, statutes, articles and more, all with unlimited email access to an attorney who can answer questions along the way. The site is : http://my.rosen.com/


#3

My fiancé has the fear she would press false charges against him as she has in the past if he tries to modify the court order–if this is the case he can’t afford an attorney what can he do. Also he wants to modify the court order, and we don’t have money to hire anyone to help. What documents do we need (we have papers for a summons, mediation and modification) and do we have to serve both her lawyer and her or just one of them. Do we have to calendar a day and ask for mediation or just one?

She has told him not to attempt to contact their children or any member of her family in any way–email, phone, mail or in person. He mailed a detailed letter to her asking for certain days to have/see the kids with times being every other weekend and holidays alternating between them and gave her a chance to reply via written letter with days she found agreeable if those he requested were not. Her response was to call and berate him and tell him never to attempt and contact her kids, or family.

If he mails them holiday cards can she do anything legally? Also if he went to their school and saw the kids in front of a staff member is there anything she can do? He loves his kids, but also doesn’t need nor want to go to jail–his ex if a rock and a hard place to deal with so to speak.


#4

In the event she presses false charges your fiancé should be able to defend himself against a baseless claim, and this should not prevent his filing of a modification motion. Again, I believe our DIY system would benefit you greatly, and suggest you check out the site for more information.

It is certainly not wrong for your fiancé to send the children holiday cards, and he may attempt to visit them at school, if the school offers lunch with parents, or some other option for parents to spend time with children without interrupting the curriculum.