BM refusing to follow order, visitation denial or..?

[chickenbubbasmom]

Hi guys..last Thursday we went to court on an ex-parte,  after oldest son was struck by mom's live in. The oldest child's primary residence was changed to our home, with BM having 2nd, 4th, 5th weekends as well as Tuesday 2 pm until school the next morning. Custody is still joint/joint, and DH's time with younger son stayed the same.

Last Friday, DH was denied his weekend with the younger child, BM cited illness. Child went to school on Friday, but after his activities for that day (parade) BM signed him out early.

BM picked older child up for Tuesday visitation, but failed to return him to school the next morning per the order. DH had to drive to her home Wednesday afternoon to retrieve him, which is much further travel than his school. (quick history) Older child was pulled out of regular school by BM last October. He is currently in a home school program closer to her home, that allows him to go in daily for labs and tutoring. He doesn't have a set schedule aside from his work turn-in day. Court order states her weekday visitation is 2 pm Tuesday until school starts the following day. DH wants him at school on Wednesday, but she is refusing.

Getting to the real problem, which is this weekend..Order states that when a parent's weekend falls on a weekend during which the Friday or Monday is a non-school day, the parent gets the third day. Today is a non-school day in their district. We interpret this to mean BM's weekend would have started Thursday at 3:15 instead of Friday at 3:15. We've been over this several times in the past with BM when DH's weekend has fallen on non-school days.  Child (he's almost 15) called BM last night to see why she didn't call or come get him, and to find out what time she was going to get him today. He wanted to know, mainly because he was trying to make plans with a friend. BM told him something about caring about his friend more than her..then said told him she was picking him up and keeping him until Monday or Tuesday.

BM refuses to speak to DH on the phone, and will only communicate through text messaging. He tried to call her repeatedly to discuss the matter after his son got off the phone, and was hung up on. Finally he texted her letting her know that she missed her pick-up, and that son is supposed to return at 5pm Sunday, not Monday or Tuesday. She responded by saying that she was going to pick him up at 3:15 Friday, and DH can get him from school on Tuesday because of the 3rd day. However, she has Tuesday visitation, so he would not return to DH until Wednesday.

BM interpretation of the order is that she can keep him on Monday, because he is in home school anyway so it is a non-school day. Even under that premise, pick up would be 5 pm Monday. She blames DH for not calling her and telling her when she was supposed to get him. She's claiming she didn't know he was out of school on Friday, even though younger son is on the same schedule.

DH feel's like, it is her responsibility to understand the order, and follow through on it. She has clearly stated in text messages she refuses to return the child on Sunday. If he goes, we will most likely be unable to locate her. DH is so stressed from the whole situation. He told her that because she did not show up or call about Thursday 3:15 pick up, her visitation is considered canceled (order states canceled after half hour if visiting parent doesn't show up or call, but she will just say she didn't know about Thursday pick-up). Particularly because she is also refusing to return the child until Tuesday, when he was willing to work it out with her. I kind of feel like that's wrong on his part, but am at a loss for what else to tell DH..

Question, is our interpretation of the order correct.? Is it grounds to deny visitation?.. is her refusal to return him grounds to deny visitation? What other options.? Aside from another weekend of police, endless stress, and hours wasted. Honestly, DH is not trying to be an A hole. All he wants is smooth pick up/drop off and for her to follow the order.

[Kitty C.]

'He told her that because she did not show up or call about Thursday 3:15 pick up, her visitation is considered canceled (order states canceled after half hour if visiting parent doesn't show up or call, but she will just say she didn't know about Thursday pick-up).'
 
I'd say it's cancelled.  She can try to use the excuse that she didn't know, but if the younger child is on the same schedule, she doesn't have a leg to stand on.
 
I would refuse to let the child go, since she didn't pick him up in time and your order specifically allows for that.  If she wants to push the issue in court (like filing for contempt), let her.........she'll only be burying herself in the process.  Just make sure that she pays ALL court/atty. fees involved if she does file contempt on the issue for forcing a frivilous action in court.

[gemini3]

So, since the order you got is an ex parte, is there another hearing on the horizon to finalize?
 

[ocean]

I agree with Kitty, she missed the visit. Document it.
Text her "you missed the pick up time and other arrangements have been made for him for this weekend". Tell son to forward any texts to you and you will deal with mother and to go to his friends.

Is the education piece going to be in the next hearing to get him to go to school and make her accountable?

[Kitty C.]

'Text her "you missed the pick up time and other arrangements have been made for him for this weekend". Tell son to forward any texts to you and you will deal with mother and to go to his friends.'
 
I would also include something like 'per the custody order, if the child is not picked up within XX min./hr., the receiving parent forfeits their visitation.'  Quote the order to her, so that there is NO doubt whatsoever.  If she still claims she didn't know, tell her she can take it up with the court.
 
If she even makes it that far, I'd like to see her trying to convince a judge that she had no knowledge of older child's school schedule when the younger one with her has the SAME schedule.

[chickenbubbasmom]

Ex parte hearing was last Tuesday. BM didn't show up because she was in the emergency room with chest pains. Judge postponed until Thursday, and on Thursday they had same day mediation and permanent orders were made.

They are still going back to court next month for mandatory settlement conference, because the marriage was bifurcated years ago, but nothing was settled.

I guess the school issue was never settled..

BM is saying every day is a non-school day since he is in independent studies (so her visitation goes on indefinitely?)...as you know, she is the one who pulled him out of school and enrolled him in independent studies. DH had planned on keeping him in independent studies to finish out 8thgrade so he can graduate. That way he would start high school freshnext year. Still unsure about it.

BM showed up at our home around 11 today demanding the child. Police came and tried to bully DH, and threatening to cite him for a misdemeanor of failure to follow a court order. In the end they did nothing but make a report.

BM is using every loophole, to try and make our lives miserable. The order states, "When parent's weekend coincides with a non-school day on Friday or Monday, the third day shall be included." Since there are no specific times, the cops say it is a gray area. What it tells me is that, if Friday is a non-school day she would get him a day earlier (Thursday 3:15) and if Monday is a non-school day it would be a day later (Monday 5:00). Right? That's the way we've always done it in the past on DH's visitation. Cops say it doesn't matter what you've done in the past or what you think she knows, since it's not specific in the order. So, she can keep him from whenever until whenever?..I don't get it. The court expects people to use common sense, that's all.

It also says "parent must wait only 30 minutes before time is considered canceled"..Since she didn't call or show up on Thursday, DH considered her visitation canceled. At first, DH tried to reason with her and give her the time, but when she sent him a text message stating she will be picking him up on Friday, and DH can have him back Tuesday after school, DH said forget it, you aren't getting him at all because your time was canceled AND you are refusing to return him Sunday at 5 pm. She is insisting Monday is her 3rd day, even though Friday was the non- school day.  Does she have anything here.?

[ocean]

Def grey area but I would take it that she got him Friday in the morning sometime...until sunday. I think it was written like that because for the most part, extra days are on mondays, so if it was her weekend she would keep him until Monday night instead of Sunday night (like Martin Luther King day, Memorial Day...).

I guess when he goes back it really needs to be black and white. If it is a schedule holiday on the public school calendar mother will get extra day added. I might go as far as look them up and just write it all out:
Mother will have parenting plan on: detailed out for times and dates with no negoitation.

[chickenbubbasmom]

Ocean, the grey area is the part I'm worried about. DH doesn't want to do anything to compromise his position, but it's not fair that he spend every weekend trying to get his time or get her to return the child. She point blank stated in a text message DH could have him back Tuesday afternoon, and that she was keeping him from Friday until then.

 I always took the order to mean the same time, but either a day earlier or a day later. Otherwise, wouldn't they specify a time to avoid conflict.? I don't know what to think anymore. We can't spend every Sunday trying to locate the child, in order to call the police, in order to have the child returned.

[ocean]

School was out today so she should of contacted you to get him early today (or if you always did the night before then fine...). BUT since it is not written then nothing the courts will do except put new wording so there is no more misunderstanding...

Can he either add paperwork so this parenting plan will be tweaked in March or file a modification/mediation date to have it addressed?

You can try emailing her that until the March court date, as court ordered she is to have him on the following dates and that you will file papers to clarify the long weekends....since he does not go to traditional school. (if you change it, then also address the school for next year so it is ready and then address what happens on school vacations)

Since you have custody and his age, when it is time to pick him up and she wont release call police and child will say he wants to go "home" to dad. Just tell son that you need to be home on Sunday at 5pm and if there is an issue you will take care of it with the police.

I am guessing since she made a big stink today, she will file on you and you will get a court date that way. They may say you owe her the day but since it was not clear you are not in contempt. Offer the extra day in the summer but that you needed to be sure he was coming home as her texts said otherwise.

[Kitty C.]

'BM is saying every day is a non-school day since he is in independent studies....'
 
Here's a suggestion that might kill two birds with one stone...........
 
If she decides to take this issue to court, let her.   All you can tell the judge is what you did is YOUR interpretation of it and if it is too vague, then an order needs to be in place that is more specific.  At the same time, request the court to determine that child's 'independent studies' are equal to regular school and suggest that the local school's calendar be used as a guideline for 'non-school days'.  That way you not only have the court's determination of child's education status, but also an absolute calendar to go by regarding non-school days, thereby removing ALL doubt as to when BM can have extra days.
 
Seems reasonable to me.........