How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Law Educator, Esq. Your Own Question

Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 89572
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
10285032
Type Your Family Law Question Here...
Law Educator, Esq. is online now
A new question is answered every 9 seconds

I have had sole physical and legal custody of my daughter for

Resolved Question:

I have had sole physical and legal custody of my daughter for 9 1/2 years. My ex has recently decided to modify custody and has also asked for more parenting time in lieu of 1X weekly. During our marriage my ex was abusive and was on a great deal of rx medications such as Valium and pain medications. Now the court will no longer hear evidence of things that happened prior to the modification (which he agreed to) in 2008. Now my ex has accused me of everything from smoking to alcohol abuse, abusing our daughter and preventing him access to our daughter through phonecalls etc. I do not smoke or drink, and have never abused our daughter. Cps allegations were unfounded. My ex has made it a habit of calling CPS during this trial and in the past. He also got an OP against my current BF which my BF was found "not guilty" after trial in criminal court. My ex has also admitted to not giving our daughter her proper medication for ADHD Aspergers/Bipolar during this hearing and also testified that he doesn't believe she has any of the diagnoses except ADHD. My ex was also diagnosed bipolar, but did not produce his medical records because the psychiatrist died in April. My ex has recently remarried in June and wants our daughter to live with him. He prodiced a pic of our daughter (I suppose it was her but pic didnt show her head or face) but the bruises were not from me. Can the judge dismiss this entire action after trial including vacating our temp agreement for visitation? Due to delays, the judge set up week on/week off visits with her dad, but it is affecting her emotionally to be seperated from her half-brother, me and maternal grandmother who lives with us as well. Please help
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.
It is a shame when someone abuses the legal system and uses a child as a pawn in their silly games like this. You do have recourse though. Your recourse here is first your boyfriend needs to sue your ex for malicious prosecution and abuse of process and seek damages from your ex. Second, if he has made false CPS complaints, this can be prosecuted as a criminal offense in NY and is a class A misdemeanor for filing false CPS reports. It is also grounds to sue him for harassment for filing false complaints and this would be separate from your custody litigation.

The good news is the courts do understand and see people filing these malicious abuse claims all of the time, so you need to raise the false complaints in the custody hearing and provide proof that all of the complaints were false and made unfounded. If he has admitted not giving your child proper medication, then he is not properly caring for the child and this is another ground for the court to deny him more custody time. Furthermore, if he is still on drugs, you need to subpoena his current medical records and get current proof to the court of his drug abuse, as the stale information is not acceptable, you have to present new information and you need to serve him with discovery to make him turn over the information or issue subpoenas to his doctors and the hospitals to get the information.


I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

If you did not get all of the information you may have wanted PLEASE USE THE REPLY TO EXPERT LINK IF YOU HAVE FOLLOW UP QUESTIONS AND NOT THE FEEDBACK BUTTON FOR BAD SERVICE. PLEASE CLICK ON “OK,” “GOOD” or “EXCELLENT” SERVICE. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the or REPLY TO EXPERT button with whatever issue or clarification you may need.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

PLEASE NOTE WELL WE ARE DEALING WITH LAWS OF 50 STATES PLUS FEDERAL LAWS, AS WELL AS DEALING WITH OTHER CUSTOMERS, SO PLEASE BE PATIENT AND BE ASSURED YOU ARE NOT BEING IGNORED.

There can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break.

You can always request me through my profile at http://www.justanswer.com/law/expert-paulmjd/ or beginning your question with “For PaulMJD…”

Customer: replied 1 year ago.

It seems as if the judge is holding on to this case despite it not having any "face value" in the petition. Many of the allegations are not in the petition and have come along during hearings. My lawyer made mention of this, but the judge said he could argue that point (I assume) during closing arguments. My qt though is will the judge vacate this temp visitation agreement after trial if my ex cannot prove his case. Or can she still make this visitation schedule "stick" being that it has existed since mid-October. Having my daughter with disabilities shuffled from parent to parent is killing us, and causing emotional problems with our daughter as well as the fact that her level of disorganization has increased ten-fold since its inception. WHy would th ejudge continue with this visitation schedule when she has had a stable life for 9.5 years prior to this preceeding? Also, there is no "discovery" in family court NY. The court has not ordered my ex to produce these medical records, and we are in the midst of trial already.

Expert:  Law Educator, Esq. replied 1 year ago.
While you may be beyond the discovery period, there certainly is discovery in the NY Family Court under NY Family Court Section 331.2 and also upon order of the court in Section 331.3.

If this visitation schedule is causing these emotional problems, you have to have her doctor testify in the court about how the visitation schedule is not in the best interests of your daughter. You have the burden of presenting the evidence in your case of the harm you are alleging that this type of visitation is causing and why it is not in your child's best interest.

The courts believe that both parents should have participation in the life of their child, especially given the US Supreme Court ruling in Troxel v. Granville, where the Court held that the right to raise one's child is a "fundamental right." Thus, the court is always going to strive for giving the non-custodial parent some type of access to the child unless the custodial parent can prove they are not fit or against the best interests of the child to do so.
Customer: replied 1 year ago.


As this is a custody petition, it was my understanding that if my ex could not prove his case, than the temp viisitation agreement would be vacated as well. My ex agreed to a 1X week visitation schedule as a result of our last modification in 2008. Why is it that my last modification agreement does not seem to be holding any weight? Why wouldn't the viistation schedule revert back to the prior modification agreement schedule if he cannot prove his case? Isn't the fact that he has made false claims of abuse and other false allegations NOT in the best interests of our daughter?

Expert:  Law Educator, Esq. replied 1 year ago.
Your ex has to prove there has been some change in circumstances to warrant the change in the visitation and then you have to present evidence to counter your ex's evidence. That is how these cases work. If he cannot prove his case or you can disprove any evidence he presents if he does present any evidence, then he would not get the modification. The fact that he made false claims against you for abuse does not mean that it is not in the best interests of your daughter I am afraid, as those are complaints against you and that is something you can pursue him for later.
Customer: replied 1 year ago.

I just fail to see how separating siblings is in the best interest of a child in favor of more parenting time for an otherwise absentee parent. Does the court not weigh heavily on the fact that siblings who said prayers every night together, played together, and spent every moment together would be an abuse of discretion to change that?

Expert:  Law Educator, Esq. replied 1 year ago.
No, I am afraid that it would not be an abuse of discretion. An abuse of discretion is where when all of the evidence presented to the court is considered that no reasonable person could reach the same conclusion. While I understand your disdain for the father, the fact is that the US Supreme Court stated he has a fundamental right to see his child, just like you have a fundamental right to be with the child and your rights are no more or no less important than his rights. The US Supreme Court said you have to prove he is unfit and him being able to see the child is not in the best interests of the child to deprive him of that fundamental right. Thus, you have a chance here, but you have to counter any alleged evidence he presents in court as to why he should be able to have visitation with the child. This is based on a sliding scale of proof. He presents his grounds for visitation and you have to present your evidence as to why it is not best for the child. Splitting siblings is one factor the court will consider, but not the only factor, especially if it is for one or two days a week. You need to show how he is unfit and you need to show with expert evidence as to why this is harmful to the child.
Customer: replied 1 year ago.


Curiously, the law guardian has never come to my home dispite my attempts at inviting her to see our daughter's natural environment. She has, on several occasions, gone to the prospective hoe and repeatedly interviewed our daughter there. Additionally, despite medical records that the GAL and all lawyers have had, citing that Meghan has always been a happy well adjusted child, it seems as if that has been largely if not completely ignored. No home study was ever ordered by the court, no Forensic evaluatins, no nothing. Instead, the court is comfortable relying on mere allegations and the testimony of the two litigants to solve these issues. Even my lawyer thinks that this petition should have been dismissed a long time ago. Sorry for the continued qts, but I am completely dumbfounded here. It has torn apart our daughters whole life in addition to everyone in our immediate family.

Expert:  Law Educator, Esq. replied 1 year ago.
If the GAL has not made any inspections or conducted any interviews with you or the child, then you have the right to object to anything in the GAL report that discusses you or the child or your living conditions as not being based on any first hand knowledge or inspection.

I am sure your child is a very happy and well adjusted child as you seem like a very concerned mother. I am not saying you should not win your case either. I am merely pointing out to you what you need to prepare and put together to support your position, because the court relies upon proof and evidence presented to the court and not just self serving statements of either parent. Thus, I am presuming you have actual evidence of everything you are stating and if you present that evidence to the court, then you should be successful if that evidence proves everything you have said above.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 89572
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
Law Educator, Esq. and 3 other Family Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
< Last | Next >
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney and Counselor at Law

    Satisfied Customers:

    6424
    27+ years legal experience. I remain current in Family Law through regular continuing education.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Lawyer

    Satisfied Customers:

    6336
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    5987
    I provide family and divorce law advice to my clients in my firm.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    5773
    JD, 15 years legal experience including family law
  • http://ww2.justanswer.com/uploads/BrianTMayer/2010-01-06_200119_BM.jpg Brandon M.'s Avatar

    Brandon M.

    Family Law Attorney

    Satisfied Customers:

    3810
    Attorney experienced in all aspects of family law
  • http://ww2.justanswer.com/uploads/TU/TUSA/2012-6-6_55219_test.64x64.png Thoreau (T-USA)'s Avatar

    Thoreau (T-USA)

    Lawyer

    Satisfied Customers:

    2634
    Attorney