Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
My question involves a child custody case from the State of: Illinois
I am the custodial parent. The non-custodial parent has filed a motion in court stating that I am not complying with the court ordered visitation schedule when in fact I always have and am.
We live about 3 hours apart and ever since the kids and I moved last year, we have always met at a half-way point for exchange of the children. Last week I was laid off from my job due to my current pregnancy. I sent a text informing the father that I would not be working until December after my twins are born and I am able to return to work. In the mean time I asked for him to drive an extra 20 minutes my way so I can save some money on gas since my income is greatly reduced temporarily. He agreed after some argument and even stated he would "keep it out of court". Well I just received a new court order filed May 28th (3 days after we agreed on the new temporary meeting spot!) so obviously he decided to file a motion.
In the motion he states that I am "interfering with visitation by not complying with transportation as agreed" when in fact he had the children from 5:30pm that Friday until 7:00pm Monday. He got all of his visitation time PLUS the extra day (Monday). I feel I did not interfere at all with the visitation. I did not deny him his visit and I even gave him what was supposed to be my holiday with the kids. He is currently collecting temporary disability and not working (for which he went and filed a motion to temporarily reduce his child support payments until he goes back to work but that's another issue all together)... so it is not as if I am interrupting his work schedule. He sees the children every other weekend as scheduled and always from 5:30pm Friday to 7:00pm Sunday and always has since the original order was put in to place.
My reasoning for wanting him to temporarily drive further is legitimate and I can provide proof and will be bringing my proof with me to court as to why I feel this is necessary.
I guess overall I am wondering what the heck a judge may find by this filing? Do I have a leg to stand on here and is it likely a judge will side with me and realize he's being petty? What are my chances, if any, of having it temporarily modified so that he can't continue to go crying back to court?
I also want to add I have written up a new visitation agreement that I will be presenting to the judge as the old one was outdated and we have been meeting half way for a year now where the original agreement had us each driving one way when we resided no more than 15 mins apart. I plan to present this and ask meeting half way be put in to the new agreement but then have it temporarily modified where he can drive the extra 20 mins due to my situation.
Also, the court case is still in the county in which I used to live... and that is 3 hours away from my kids and I. I have been wanting to have it moved to the county I live in now but can't get a straight answer from anybody. Is there any chance I can file to have the entire case transferred to my county and have that be granted? The state is involved with and handles our support case. I have been told they are supposed to help me out in requesting a transfer but they tell me I am on my own and the county court there hasn't been much help either.
Re: Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
Can you give us word for word what the court order says about transportation (minus names of course)?
You created the distance, correct?
I would expect the court to side with Dad on this. Your pregnancy isn't Dad's problem.
Re: Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
The original order says that he would pick kids up from my place Friday and I would pick them up from his place Sunday. However, this is not doable because that is 6 total hours of driving on each part, which is why be both agreed to meet half way.
My pregnancy isn't his problem, you're right. But his accident causing him to reduce support and taking away financially from my kids has become my problem because I have had to make adjustments due to the loss of that income because of his problem! I made the adjustments because I do everything I can for my kids.
Essentially he is crying over an extra 20 minutes that he agreed to driving. Never mind the fact that he only actually drives 20% of the time and the rest of the time his mommy & daddy drive for him.
I also like to add that as the custodial parent, the majority of the child raising costs fall on me. I guess it is just my opinion that he should be more willing to oblige when it comes to the kids because he contributes so very little as it is.
As for wanting to transfer my case, it is 100% a hardship for me to have to drive every time he decides to go to court. I miss work and worry about losing a job I need for having to take so many days off, lose about $200 when I figure in gas costs and the money I could have made if I worked that day, have to pay a sitter, etc. He doesn't have those costs to worry about. I estimate I have been sent back 10+ times in the last year alone for his problems with the child support and visitation. Financially this impacts the kids and I because I am the one paying for the roof over their heads and food on the table. He likes to play the game of filing motion after motion when he is asked to do more than the bare minimum for the kids.
Re: Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
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Quoting
blissmiss86
He agreed after some argument and even stated he would "keep it out of court". Well I just received a new court order filed May 28th (3 days after we agreed on the new temporary meeting spot!) so obviously he decided to file a motion.
You received a new order, amending the prior custody order? Or merely notice that your ex- was petitioning for amendment of the existing order?
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Quoting blissmiss86
My reasoning for wanting him to temporarily drive further is legitimate and I can provide proof and will be bringing my proof with me to court as to why I feel this is necessary.
Because gas costs money? I expect that his car runs on gas, as well. Because you're off work for medical reasons? You just told us that he is disabled from work, as well.
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Quoting blissmiss86
I guess overall I am wondering what the heck a judge may find by this filing?
You can ask the judge to modify the point of exchange, just as your ex- can ask the court to formalize the point of exchange you have historically used or to set some other point of exchange.
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Quoting blissmiss86
Do I have a leg to stand on here and is it likely a judge will side with me and realize he's being petty?
If you can show he agreed to the exchange point, you can present your evidence. If that agreement was made before your ex- became disabled and unable to work, I expect he'll be making essentially the same argument as you, that he was willing to pay for extra gas while he worked and you did not, but now that you're both off of work it should go back to an even split.
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blissmiss86
The original order says that he would pick kids up from my place Friday and I would pick them up from his place Sunday.
With the children to go to the father at 5:30 PM and to return to you when the visitation is over at 7:00 PM?
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Quoting blissmiss86
Also, the court case is still in the county in which I used to live... and that is 3 hours away from my kids and I. I have been wanting to have it moved to the county I live in now but can't get a straight answer from anybody. Is there any chance I can file to have the entire case transferred to my county and have that be granted?
Does dad still live in that county?
(I expect that you could get a lot of straight answers if you sat down with a lawyer for a review of your case and issues.)
Re: Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
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blissmiss86
We live about 3 hours apart and ever since the kids and I moved last year
The fact that you moved the children further away from dad is likely to give dad the advantage in travel and cost matters.
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Last week I was laid off from my job due to my current pregnancy.
Can you clarify this? Is your job waiting for you when you come back, meaning you are on unpaid leave? Or that your employment has been terminated? Laid off implies that your job with this employer is over, but that you may be eligible for re-hire. Are you still receiving employee benefits, access to group plans like insurance, etc.?
Be prepared for dad to argue that his income is reduced through no fault of his own, but that YOUR income is reduced due to pregnancy (which isn't seen as accidental by most judges since it takes a willful act).
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I feel I did not interfere at all with the visitation.
Under the current agreement that the court is privy to, I'd have to agree with you. The problems come when the parties make a new agreement that is outside the bounds of the order on file with the court - because until one of you gets the order updated via the court, the only ENFORCEABLE terms are those spelled out in the agreement. That works fine as long as both sides are happy with it, but when one side isn't, they can revert to the original standing order, leaving the other side to have to scamper to court and try to get the order to reflect the current state of affairs, which in your case has had changes for multiple reasons, on both your side and dad's, since that original decree was issued. So the court knows about "plan a", but you and dad have been working off "plan b", and now there's going to be dad asking for "plan c" to reflect his diminished income, and you asking for "plan d" due to transportation issues. It really is time, as Mr K pointed out, to be sitting down with an attorney - because while you have some valid points and some reasonable requests, you also have issues working against you that you can expect dad to capitalize on if given the opportunity.
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he went and filed a motion to temporarily reduce his child support payments until he goes back to work but that's another issue all together
Which is what he SHOULD have done to protect his interests. He actually probably should have sought an updated order when you moved (and had he wanted to, he could have dragged you to court over moving, too). When there is a change of circumstances, such as moving, creating distance, altering transportating agreements, or significant financial changes, that's exactly when it's time to get before the judge and ensure that the orders encompass those issues. Neither of you should have waited this long, but at least now you'll both be able to tell the court where you stand, and why, and ask that the order be updated accordingly.
Re: Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
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Quoting
Mr. Knowitall
You received a new order, amending the prior custody order? Or merely notice that your ex- was petitioning for amendment of the existing order?
I was sent a motion simply saying I was not complying with the transportation agreement and it was interfering with his visitation. The fact of the matter was it did not interfere at all and he was even given extra time last weekend.
Because gas costs money? I expect that his car runs on gas, as well. Because you're off work for medical reasons? You just told us that he is disabled from work, as well.
The gas isn't the issue but it adds up yes. The issue is I have less income and still have all of the same expenses before I was laid off. I asked for an adjustment for him to drive slightly further temporarily to offset some of the costs on my end because I still have to pay the bills. He agreed last weekend to do this and to keep it out of court then filed this motion 3 days later.
You can ask the judge to modify the point of exchange, just as your ex- can ask the court to formalize the point of exchange you have historically used or to set some other point of exchange.
This is what I plan to do... and have a new visitation schedule written up to present.
If you can show he agreed to the exchange point, you can present your evidence. If that agreement was made before your ex- became disabled and unable to work, I expect he'll be making essentially the same argument as you, that he was willing to pay for extra gas while he worked and you did not, but now that you're both off of work it should go back to an even split.
I can show proof of him agreeing to the exchange we set up last weekend. I still have the text messages... I guess you're right, he can argue just the same point. I feel it is more of a burden to me having to be laid off and still having the same amount financially to afford for my children and I to live whereas he does not. He even had his support lowered and is not required to pay any more on his arrears until he begins working again.
With the children to go to the father at 5:30 PM and to return to you when the visitation is over at 7:00 PM?
Does dad still live in that county?
Yes, he still resides in that county. I have been researching and finding it is next to impossible for a judge to grant a change of venue because he still lives there...
(I expect that you could get a lot of straight answers if you sat down with a lawyer for a review of your case and issues.)
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aardvarc
The fact that you moved the children further away from dad is likely to give dad the advantage in travel and cost matters
I figured as much...
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Can you clarify this? Is your job waiting for you when you come back, meaning you are on unpaid leave? Or that your employment has been terminated? Laid off implies that your job with this employer is over, but that you may be eligible for re-hire. Are you still receiving employee benefits, access to group plans like insurance, etc.?
You are exactly right. My doctor ordered me to go on light duty at work with a 20# weight limit. They changed my status from full-time to on-call immediately after learning of my new dr orders (so that they could legally say they didn't fire me due to my pregnancy) and said I would be eligible for getting my position back IF it is available when I am able to go back to work. I do not get any benefits, they were all cancelled. I am collecting unemployment for the time being.
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Be prepared for dad to argue that his income is reduced through no fault of his own, but that YOUR income is reduced due to pregnancy (which isn't seen as accidental by most judges since it takes a willful act).
He already has been to court for this, hence the reduction in child support until the end of September when he gets to go back and either keep it lowered or show proof he is back to work.
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Under the current agreement that the court is privy to, I'd have to agree with you. The problems come when the parties make a new agreement that is outside the bounds of the order on file with the court - because until one of you gets the order updated via the court, the only ENFORCEABLE terms are those spelled out in the agreement. That works fine as long as both sides are happy with it, but when one side isn't, they can revert to the original standing order, leaving the other side to have to scamper to court and try to get the order to reflect the current state of affairs, which in your case has had changes for multiple reasons, on both your side and dad's, since that original decree was issued. So the court knows about "plan a", but you and dad have been working off "plan b", and now there's going to be dad asking for "plan c" to reflect his diminished income, and you asking for "plan d" due to transportation issues. It really is time, as Mr K pointed out, to be sitting down with an attorney - because while you have some valid points and some reasonable requests, you also have issues working against you that you can expect dad to capitalize on if given the opportunity.
I know it is time to sit with an attorney and I am doing so this week. It seems ex is taking advantage of the old order having not been updated yet as a way to make me look like I am messing with his visitation and not complying when in fact he agreed to following "plan b" and only got mad when I asked him to adjust from "plan b" and is retaliating by filing this motion.
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Which is what he SHOULD have done to protect his interests. He actually probably should have sought an updated order when you moved (and had he wanted to, he could have dragged you to court over moving, too). When there is a change of circumstances, such as moving, creating distance, altering transportating agreements, or significant financial changes, that's exactly when it's time to get before the judge and ensure that the orders encompass those issues. Neither of you should have waited this long, but at least now you'll both be able to tell the court where you stand, and why, and ask that the order be updated accordingly.
You're right. I should have updated the orders a year ago... but I didn't and now it's been a huge PITA.
Re: Non-Custodial Filed Motion Stating I Am "Not Complying" with Visitation
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Quoting
blissmiss86
We live about 3 hours apart and ever since the kids and I moved last year, we have always met at a half-way point for exchange of the children. Last week I was laid off from my job due to my current pregnancy. I sent a text informing the father that I would not be working until December after my twins are born and I am able to return to work. In the mean time I asked for him to drive an extra 20 minutes my way so I can save some money on gas since my income is greatly reduced temporarily.
If the issue isn't gas, what is the issue? And why did you tell us it was gas money?