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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 89396
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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Visitation Change

Customer Question

Good Evening, I am a teacher and am used to writing long paragraphs. I will work to keep this brief. June 2011-Sumter County Family Court, South Carolina Agree to let spouse take kids and move out of state due to job in family court. Judge orders that I have visitation during the summer, Christmas and New Year's holidays every year, and we rotate the spring break and Thanksgiving holidays due to travel from South Carolina to Texas. Judge set as a temporary order. Spouse pays 75% and I am responsible for 25% of travel costs for visitation. June 15, 2011-Sumter County Family Court, South Carolina Ex-Spouse's attorney files an appeal to have costs split 50/50. Judge declines to modify court order. Spouse files to appeal February 2013--Ex-Spouse requests mediation on visitation Ex-Spouse wants Christmas visitation every other year and half of the summer. I still live in South Carolina and she lives in Texas. I decline to modify, we satisfy 3 hour mediation requirement. May 2013--Court Date set for Trial What will it take for my Ex to overturn the Judges order from June 2011? The only time I am off from work, as an elementary school teacher, is Christmas, New Years, Thanksgiving, Spring Break and summer; thus the ruling and order from June 2011. She will say she wants equal access during the holidays; but she agreed to the court order prior to moving. How will this work for or against me? --Side Issue to consider-- I sent my dates for visitation for summer visitation by the required date and now she wants to cut into those times due to her retirement from the military. It is written in my order, that father's visitation takes precedence in regards XXXXX XXXXX visitation. I would not mind changing, but I scheduled my dates due to my school training at the end of the summer. I feel I have met reasonable doubt, but I am concerned about my visitation times being cut short. It went from every other weekend and Thursdays, to holidays, to even less now. 1. What approach would you take to this case in court? 2. Does the judges prior order have any say how the current judge will rule?

Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

The court may modify such an agreement if they find a significant change in circumstances have occurred since the issuance of the original agreement/order and such change is in the best interest of the child. The fact she agreed to this schedule initially will be held against her and her retirement from the military is not a significant change in circumstances generally to incline a court to make such a change. Because of your particular schedule, the order was set this way to accommodate that schedule and this is in your favor in that your time off is dictated by the school year.

To attack her motion, you must argue and show that there have been no significant changes in circumstances that would warrant a change in the visitation order. You would also argue that your schedule is fixed and not flexible based on your job and is dictated by the school year.

Judges may change their orders, but if she stipulated and/or agreed to this schedule and then the court entered it as an order, generally the courts review agreements between the parties as contractual agreements where both parties have agreed and signed and are thus bound by their agreements unless there is some circumstance that makes it in the best interests of the child (not her) to change the agreement/order.



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Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 89396
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
Law Educator, Esq. and 3 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks again for your help.

The judge also put a statement into the temporary order that stated, "The fathers vistation takes priority over all events during the summer visitation."

My ex has scheduled and paid for my boys to attend Boy Scout Camp the first week I am scheduled to pick them up. I had the judge put this statement into the agreement to eliminate this type of situation.
Would this fall under the original arguement we discussed?

Does it matter if this is a different judge versus the judge that put the order in place as well as upheld my ex's appeal?

We have had 2 summer visitations without any problems this year, yet this year she has decided to go out on her own. It is almost as if she wants to alienate me from their lives. Should I bring up the words parent alienation? Is it reasonable to bring up in court?

I respect your opinion and appreciate your help.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

If you have that clause in your order and she intentionally scheduled them for camp, she is in contempt of the order and the other judge is going to have to enforce the court order as written unless she can show the significant change in circumstances that warrant a change in the visitation. You should file a order for contempt based on her scheduling the camp.
Customer: replied 1 year ago.
Does the contempt order need to be filed prior to our trial date on the 28th, or can it be filed and addressed at the trail?
Expert:  Law Educator, Esq. replied 1 year ago.
You should file it now and it does need to be filed in advance of th 28th court date and you would ask in the contempt motion that the court issue an injunction to prohibit her from sending them to the camp at that time.
Customer: replied 1 year ago.
The reasoning she uses is that she wanted to pay in advance to save a slot for the boys pending the decision of the judge on May 28th.
The issue on the 28th to be discussed is cutting down my summer visitation.

Would you still file the contempt order knowing that will be the issue discussed on the 28th?
Or, would the contempt order show the plaintiff's disregard for the court order and keeping the childrens' best interests at heart?
Expert:  Law Educator, Esq. replied 1 year ago.
Yes, I would counter her motion regarding changing visitation with the one for contempt, especially since your current order makes it clear the reasoning behind it being so specific because of your occupation and limited time off.
Customer: replied 1 year ago.
Thank you. I have another question, but I need some time to gather my thoughts and put it together. I really appreciate your help.
Expert:  Law Educator, Esq. replied 1 year ago.
Sure, no problem. I will be around. Thank you.
Customer: replied 1 year ago.

Thank you again for your patience.


 


1. Won't the judge be upset with frivolous paperwork when we have a trial date set for the 28th, if I drive up to Sumter County and file the Contempt?


2. Can I hand deliver the contempt I filed with the court to the plaintiff?


What is the procedure for filing a contempt order with the family court? I have searched the internet for this answer but cannot find a solid answer. I know there will be a filing fee, are there any others?


 


I keep looking at this case and have run through the what if scenarios and cannot see how she will have a ground to stand on. By letting her move to Texas to finish her military career and take the kids, my visitation was cut from 35% to less than 15% now.


 


Are there any other angles I should be looking at to prepare for?


 


If I write the contempt order may I email it to you?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

1) The motion to the contempt because she is scheduling camp when the order specifies she was not to do so means it would not be frivolous to the judge.

2) You can hand deliver the contempt motion, but the rules do not require you to do so, once you file it with the clerk of court you can, by the rules of procedure, serve the plaintiff by regular first class mail on the motion.

3) Contempt motions are like any other motion, they do not have any special procedure to file them or serve them.

I cannot have communications with you outside of this site I am afraid.

I would say that the only other thing she can argue is that the children are getting older and want to do things like camp with their friends and the older the children get if they express these wishes to the court the court can modify your visitation to allow them to do things with their friends and do activities with their friends so be prepared for that as they get older.
Customer: replied 1 year ago.

In order for the children to communicate with the court, they would have to speak through an ad litem here in South Carolina.


If my children told me that they wanted to go to the camp, I would gladly not get in their way. I want what is best for my children.


 


The camp is at the end of June, my visitation is scheduled to start on the 17th of June. Our trial date will be on May 28th.


The decision whether they are going or not going to camp will be made on the 28th. Would you still proceed with the contempt motion?


 


The only reason I found out about the kids going to the camp was my youngest son told me last week. I feel these types of actions are not in the best interest of the children. Why tell them about going, if currently there is no chance for them to go? How can I express this in legal lingo?


 


We have both operated under the court order as it has existed for over two years now. This is the first year she has started problems. She is retiring from the military and wants more time with the kids.


 


 


Thank you for sharing the legal lingo with me. I am writing up my trial brief and might have a few more questions on lingo. I really appreciate your help. Thank you so much again.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

If the matter is already raised in the motion pending for the upcoming hearing then I would not bother with the contempt, but if the issue of camp has not been raised in the motion to modify, then you have to file the contempt motion to counter her motion to modify as part of your objection to her motion.
Customer: replied 1 year ago.
Good Evening,
How do you define a significant change to justify a change to a visitation schedule?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Significant change is not actually defined in the statute or the courts, but it is something that is a major permanent change, such as loss of a home or change in the child's schedules with school or other activities that mandates a change in the best interests of the child. A significant change could also be something that causes the custodial parent to not be able to continue to properly care for the child or the non-custodial parent to not be able to take the visitation as scheduled (like having to move or travel out of town for work).

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