Good morning, Frank, My name is XXXXX XXXXX X will be assisting you. My goal is to provide you with Excellent Service. If I have not Answered your question completely, please let me know and I will be glad to explain further,
Please allow me to review Michigan Rules of Evidence, Rule 408 and I will return momentarily. My typing leaves a lot to be desired, so please bear with me,
In the meantime, I am curious as to what grounds she gave the Court in order to get the temporary Protection Order ?
The previous weeks, she would not communicate with me and had been "stonewalling" requests I had made for about 1 month inquiring as to a her unilateral decision to change my 8 year old son's medication from Ritalin to a Theaurauputically equivalent drug.
This specialty drug is new to the market, loaded with FDA Black Box warnings and very difficult to have filled because it is produced in India.
We have joint legal custody and she's required to discuss these matters with me.
I went to her place of employment-- calmly- no threats issued substantiated by police report- simply to ask her the reasonable questions i had as a parent. When she saw me, she immediately grabbed her phone, called 911. I shook my head and calmly left the office.
She lied in her request letter on a broad range of issues which were easily dismantled (phone records, etc.)
Thank you for your reply, Frank, So, she wants you out of the picture so that she can give any kind of medication to your son that she wants and if you attempted to exercise your rights to participate in these decisions, all she would have to do is pick up the phone, call 911 and accuse you of violating the Order of Protection.
Your attorney should lay a foundation and then introduce evidence of the drug she wants to substitute for Ritalin. You should bring with you any reports issuing warnings for the drug she wants to give your son and that she should not be left to her own devices because she obviously is not making sound decisions which are in the best interests of your son.
In addition, you should testify as to what else she is trying to extort from you. Money, which I discuss below as well as parenting issues which have absolutely no place in discussions for an Order of Protection, except for the fact that she is raising these issues with discussions for an Order of Protection which she is really using to get what she wants regarding your son, parenting, and leaving you out of any decision making in what medications your son should be taking.
I have reviewed Rule 408 and I am reprinting it as reference. I have highlighted that part which is the basis of my argument.
Rule 408 Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
"... such as proving bias or prejudice of a witness, etc." are given only as examples of when negotiations will not be excluded, they are not the only situations where they would be admissible.
Each State has a similar rule on admissibility of negotiations. I must respectfully XXXXX XXXXX your attorney who thinks it is hearsay. It is not hearsay. This rule has its origins in encouraging litigants to reach a compromise and it is felt that if their negotiations were admissible, it would discourage litigants from attempting to resolve their differences out of Court.
My interpretation is that the email sent by opposing counsel is admissible to show that your former wife was motivated by money in seeking this Order of Protection. . If she were truly in fear of bodily injury by you, she would not abandon the idea of obtaining an Order of Protection for any amount of money. So, too, the average person's fear of bodily injury would not be diminished by the payment of money. See if you can find out any information on her financial condition - Did she make any large purchases, did she make any bad investments, etc., anything that would put her in a position to need more money and which would motivate her to look in your direction for this money. Or, if you received a substantial raise, or came into some money, or won the lottery, anything that would also motivate her to want to share in this newfound wealth. You have to look to all possibilities which would motivate her to look to you for money
If I were in your position, I would tell my attorney that he absolutely must introduce opposing counsel's email into evidence and when opposing counsel objects, your attorney's response should be along the following lines,
Your Honor, I am familiar with Rule 408 of the Rules of Evidence, but I am not offering this email to prove liability; I am introducing this into evidence to show the Court what really prompted Mrs. __________ to seek an Order of Protection and to prove that her motive was simply to extort money from Mr. M. If one is sincerely XXXXX XXXXX of another individual to the point of seeking an Order of Protection, that fear is not eliminated or diminished by the payment of money. This is clearly an attempt by Mrs. __________ to extort money from Mr. ___________ and that is the purpose of admitting this email into evidence, this Order of Protection has money as its foundation and Mrs. __________ is motivated by money in seeking this Order of Protection.
Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,
Bonus and Positive Feedback on survey is very much appreciated,
Hi, Frank, Thank you for the Excellent Service rating, I appreciate it greatly. I would be very interested to know how the Judge will rule on this issue, so if you have a minute after the hearing, please let me know.
If you have any further questions, or any questions in the future, please feel free to ask for me by typing my name at the beginning of your question like this,
"For Andrea ............ "
Thank you again for allowing me the opportunity to be of assistance,
Hi, Frank, Glad you're back :)
1. You do not have to go into any reasons, but could you explain how this issue (the Order of Protection?) is inextricably entangled with the divorce settlement ? Or is it obvious and I'm just not seeing it ? You do not have to go into detail, just a few lines so that I can put opposing counsel's email in proper perspective.
2. Other than your visit to your former spouse's workplace, were there any other situations which she could twist around to make you look bad or look like the aggressive one ?
3. Do you think that your former spouse is somehow trying to reduce you parenting time with your children by showing you as an aggressor and that is why her attorney raised the other issues ?
4. Do you have any suspicions as to how opposing counsel may have acted unethically or illegally in sending your attorney the email ?
Sounds good. Can you scan them and send them as Attachments ? You can do that by clicking on the paper clip in the tool bar at the top of each box where you type in your replies, Okay ?
No problem, Frank. It was not long at all. I wanted to be sure I have all the information I need in order to give you an accurate Answer. Let me know if you encounter any problem in sending it, I cannot call you because we are not permitted to have any communications with customers, except in this forum. Besides, JustAnswer x'd out your telephone number 'to protect your privacy'. However if you put the numbers in without the dashes, the computer will not pick it up and x it out again, Ifyou care to, give it a try
ps Am I psychic, or what ? Seems I hit it right on the money
Good evening, Frank,
I read the attachment you sent. I thought you said that there was a series of emails that went back and forth.
Nevertheless, here is how I assessed the email from David Binkley to Joseph Hardig who, I assume is your attorney. I think the issues raised by Binkley are wholly inappropriate to be discussed in the same context as an Order of Protection. He devoted three lines to the Order of Protection and the rest of the 1 1/2 pages to financial and nonfinancial issues dealing with the children.
I did not see anything unethical in the email, but he has made many self--serving statements that one would almost think that he is expecting your attorney to introduce it so that he can "malign you without speaking". For example,
1. He states in his first sentence,"... I am relying on your judgment that Frank is going to stay on the reservation and that we won't have another repeat of the office scene or the multiple, repetitive, offensive emails, text messages or voice mails. Without the PPO Ingrid is pretty defenseless so the no contact order is going to be very tight ..........."
In one sentence he manages to accuse you of sending your former wife offensive emails, text messages, leaving voice mails, and making a scene at her office. He also is "testifying" how defenseless your former spouse is.
I hope that your attorney has done his homework in
A. serving a Subpoena on the witness who spoke to the police who came to her office as a result of calling 911, and who said that nothing happened, so that he comes in to testify on your behalf;
B. Having a copy of the police report stating that the 911 call was unfounded;
C. He should have asked which witnesses Binkley has, so that your attorney knows who to bring to refute their testimony;
D. Investigating the allegations she made in order to get a temporary Protective Order so that he can call witnesses to refute her allegations as to other "incidents";
E. This email was written in June; your attorney should have sent a written response denying all of the accusations Binkley made because that is a very damning email
2. The issues which Binkley says should be resolved are totally unrelated to the issue of the Protection Order
3. Binkley puts the burden on you to act according to how he and his client want you to act - Making you look like the stumbling block to a resolution
4. Again, maligning you by saying you did not attend your daughter's extra-curricular activities, and having the audacity to demand that you send a written apology to your daughter. If you don't, you will look like you do not care about your children. If you do send a written apology, you are admitting that you do not show enough interest in your daughter's activities. So, you are damned if you do, and damned if you don't, as the saying goes;
5. Accusing you of not being a good role model of how father's should act. Binkley is sly because he kisses up to your attorney telling he's a good father and that he should counsel you on how to be a good father
6. I do not know what he doubts, or what his doubts are based on; your attorney should have addressed that issue also;
7. ***More importantly, even if you prevail at the hearing, Binkley wants you to agree to a "No Contact" order, so if you attempt to discuss or participate in making important decisions affecting the children, you will be violating the No Contact Order (Page 2, Line 3 the first asterisk )
8. Why should you have to go through a third party to exercise your rights to shared legal custody? Again, he is making you look like the instigator and his client, the victim. I hope your attorney refuted these statements;
9. Your former spouse is making decisions on the children's education and her attorney is submitting the bill to you, saying "Pay it". Did you have a chance to discuss this and offer your opinion ?
10. He is accusing you of not buying things for your children by saying you should spend money on the children. He is taking what his client says as "Gospel". here is what he states in his email,
"...There are a number of financial concessions that Frank needs to make in order to make this work ........... If Frank is willing to make this work, it involves him spending some money on the kids. He certainly makes enough to afford this proposal..........." (Bottom of Page 1)
Q. Make what work ?
11. Apparently, your attorney made some suggestions also because Binkley states,
"The non-financial issues that you suggested are largely acceptable..........."
(Page 2, Line 1)
***12. Your former wife falsely accuses you, lies through her teeth, has her attorney file a Petition seeking an Order of Protection and then demands that you pay his bill for $4,300 ???? (Page 2, last line)
13. Binkley thinks he's smart. Court reduced child support to $2,800 last year. He knows he cannot get an increase through the Court, so he's trying to extort more money from you by having your attorney agree to an increase in child support to $3,825 per month ??? That is an increase of $1,025 which is almost a 50% increase. Does Binkley think that he can circumvent the Support Guidelines and diminish the importance of the Court's Order to reduce the child support amount by agreement ? Or, does he simply think that you and your attorney are mentally challenged ?
14. Your attorney is going to have to introduce a lot of solid evidence to refute the statements and allegations in the email before he even attempts to introduce the email into evidence to show what motivated your former spouse to seek a Protection Order. It has to be done that way because you never want a Judge to hear negative comments about you and then refute them because it is his first impression that stays with him.
Your attorney might want to consider introducing her motivation through testimony, rather than through this particular email because if he does not have witnesses to testify on your behalf, the email might do more harm than good to your case.
Has your attorney done enough homework so that he will not only be prepared, but also be able to anticipate what surprises Binkley has in store for both of you ?
Good evening, Frank, Thank you for the compliments and the offer of a Bonus, They are both appreciated,
I do not think that it is litigation ability that wins a case. When I had my first trial on the issue of equitable distribution in a divorce case, he Judge called for a Pre-Trial Conference and asked me for my Pre-Trial Memorandum. I had no idea what that was, so I apologized and said, "Oh, I did not know I had to hand it in today. Well, opposing counsel would not give me a copy of what he submitted because I did not have anything to submit, so I still did not know what it was.
The trial took 3 long days after which we had to wait several months for the Judge to render a decision. I won and the Judge awarded 60% of the marital assets to my client and 40% to the spouse. What is unusual about this decision is that I was representing the husband, and for a husband to come out ahead like that, with 60% awarded to him is rare. I certainly cannot credit my litigation prowess for that decision. But, I was thoroughly prepared. That made the difference. I understood the numbers you gave and see if they work. No need to mention it again, I firmly believe that if an Attorney believes in and cares about the client, and goes into Court thoroughly prepared, then 90% of the battle is won. That is why I asked you if your attorney did his homework because from what you have written, there are so many things that your attorney has to think about so that he does not leave any loose ends at the hearing. Everything should be tied together and presented to the Judge in one neat, sequential package,
I added a small token of my appreciation Andrea. thank you. the text alerts are very helpful and innovative! I got one last night
Good evening, Frank
Thank you for the Excellent Service rating and the generous Bonus, I appreciate it greatly, but what I appreciate more is your placing your confidence in me to assist you. Please accept my apologies for not getting back to you sooner, but today was extremely hectic and to make sure I had an exceptional ending to an exceptional day, I received a call from my daughter at about 6:30 this evening that she was in an automobile accident on her way to the Airport. Thank God, she is alright, but she was very shaken up and her car had to be towed. I spoke to the police who had arrived at the scene and they assured me that she was alright, but did not want to be taken to the ER. This is the first chance I have had to sit down, I wanted to ask if you had heard from our attorney regarding your hearing tomorrow and what his plan of action was, but I see that you are not online. Yes, text alerts are a Godsend and I will use it shortly, if it is not too late. Please let me know. What, if anything your attorney is planning as an attack for tomorrow
1. It's great that you have documentation to back up whatever you say; however, will your attorney use it ?
2. A Temporary Order of Protection is granted in order to maintain the status quo until a hearing is held for a Permanent Protection Order and is based on the alleged victim's allegations that she is in fear of imminent bodily injury. My question is, why is your attorney even allowing these issues to be discussed in the context of a Protection Order ?
I cannot see how the Judge would allow all these unrelated issues to be discussed during a pre-trial conference on whether or not to grant a Permanent Order of Protection.
3. If it is not obvious to the Judge that your former spouse is not only trying t extort money from you, but also to increase child support and modify custody, then your attorney should enlighten the Judge;
4. As I said in one of my previous Answers, opposing counsel should not be permitted to circumvent the Court Order which reduced the child support amount. He knows that he cannot file a Petition to Modify Child Support, or a Petition to XXXXX unless your former spouse is able to show in each case that
"there has been a substantial change in circumstances since the date of the last Order"
That is the rule applied by all Family Court Judges in deciding Petitiions to Modify child support and custody,
Let me know if you have any questions,
This, too, should be brought to the attention of the Judge
Good Afternoon, Frank,
Thank you for asking about my daughter. She is still very shaken up because she has never been in an accident like this before; It was raining, the car went into a skid and it spun around until it hit the median. The injuries she sustained were caused by the airbags when they deployed. I am just grateful that she is alright.
I am sorry to hear about the result the Court reached and I have to say that I am very surprised that they Judge saw fit to grant a Permanent Protective Order, in the face of all the evidence that your former wife has a very overactive and creative imagination which, unfortunately, has little relation to reality. Did your attorney call the individual to testify that you had not done anything to cause your former wife to call the police ? If so, how and on what grounds did the Judge dismiss his testimony ? If he was not called to testify, what reason did your attorney have for not calling him ?
With respect to what her attorney has stated in his email (you sent as Attachment), how much has your former wife told the children and how much more in fabrications has she told the children ? Have they started to act differently towards you ? I ask these questions because more and more children whose parents are involved in divorce, or custody proceedings are suffering from Parental Alienation Syndrome" ("PAS"). This occurs when the actions of a parent are designed to alienate the children from the other parent. They may be overt actions such as, maligning the parent to the children, or making disparaging remarks about the other parent loud enough for the children to hear, or the actions might be covert such as attempts to impede the other parent's visitation by scheduling extra curricular activities for the children every day of the week , or parenting time and generally any action, or conduct designed to sever the parent-child relationship with the other parent.
A child with Parental Alienation Syndrome will exhibit behavior including, but not limited to the list below. Many feelings are conflicting which confuses the child even more.
Feels guilt, if he shows love toward the parent being maligned
Feels guilt if he enjoys being with the non-custodial parent
Feels he is betraying custodial parent if he enjoys being with noncustodial parent
Says he does not want to visit with the non-custodial parent
The reasons given by the child for not wanting to spend time with the noncustodial parent sound rehearsed
The manner in which the child expresses himself appears to be coming from an adult
Shows disrespect to the noncustodial parent without showing any remorse
Feels guilt for being disrespectful to noncustodial parent
Parental Parental Alienation Syndrome has a devastating effect on children and Family Courts have been hearing more and more cases brought by the parent whose rights have been infringed upon. Where the Family Court has found the conduct of one of the parents to be particularly egregious with respect to alienating the child from the other parent, the Court has taken custody away from that parent, given sole custody to the other parent, and permitted only supervised visitation to the culpable party. Where both parents have been found to have engaged in this conduct, the Court will determine which parent played a larger role in alienating the child from the other parent, and modify custody accordingly.
Therefore, it is something that you should pay particular attention to before the mother's conduct causes permanent emotional damage to the children. You should document everything they say and do and if anything they say sounds rehearsed or sounds like something an adult would say, or falls within one of the categories enumerated above, make a note of it as to the date, time, exactly what the child said and to what comment the child was responding, or what prompted the child to make the comment.
If you click on the link below, you will see case law from many jurisdictions and even if you do not see a Michigan case, you will see that the Family Court Judges have all ruled the same way and the same rules would apply in Michigan. The Family Court Judges in all 50 States are guided by the same principle in deciding all issues dealing with children and that is, "What will be in the best interests and permanent welfare of the child/children.
The Grigsby v. Grigsby, Case No. 2D09-5255, a 1910 Florida Appellate case is included in the case law in that link, and one that you might find of particular interest.
Good evening, Frank,
I was not online this afternoon and just returned. Thank you for the Excellent Service rating and your generous bonus. It was very kind of you and I appreciate it.
Please let me know the grounds on which the Judge based the Permanent Protective Order because it makes no sense to me. It does sound suspicious.
What did your attorney argue ??
How did he refute opposing counsel's arguments ?
Are you planning to file an Appeal ?
I will wait to hear from you,
Here is a case you might find interesting,
In the Matter of the Custody of D. T. J. S-B, a Minor Child. CHARLES ANDREW BUXTON, Co-Petitioner-Appellant, v. ERICA LYNN STORM, Co-Petitioner-Respondent.NNN-NN-NNNN A136958. Court of Appeals of Oregon. Submitted on December 4, 2009. Filed: August 11, 2010. -
Here are some excerpts from the Court's decision in that case,
"The trial court found that increased conflict between the parents had a detrimental effect on the child and constitutes a substantial change in circumstances, but did not award custody to the parent who was the target of alienating processes. The Court of Appeals overturned the lower court's decision with respect to custody...."
"The [psychological] evaluator, [name redacted], reported that mother's test results showed signs of moderate to severe depression and a tendency to feel overburdened, blocked, or trapped. [The evaluator] was concerned that mother would be prone to attempt to alienate child from father, noting that mother is "disposed to dichotomize someone * * * [and] could be quickly sensitive to her child's comments that favored the other parent over her...."
"Although mother was the primary parent, [the custody evaluator] had concerns that mother would undermine father's relationship with child. [Second custody evaluator] was particularly concerned about child's extremely negative statements about Nicole, which were 'indicative of alignment or alienation, or at the very least, exposure to extreme negativity towards Nicole on the part of [mother].' Child displayed increasing verbal and physical aggression toward Nicole. For example, he spat at Nicole hit her, and threatened to cut off her face and hands and to slice her throat open and kill her. He called her a "f-ing bitch," "slut," and "ho." Child's therapist, [name redacted], indicated that, in light of child's age, child was likely repeating something he had heard in referring to Nicole as "Nick-ho...."
"Father and Nicole reported an incident when father awoke during the middle of the night to find child standing next to the bed with a baseball bat in hand. When asked what he was doing, child said that he was going to hit Nicole in the head while she was sleeping. When father asked why, child said, 'My mom told me to.' Nicole testified that, on another occasion, child reported that mother was going to have somebody kill Nicole; during a trip to the store, child was "looking all around and he was just acting scared and wanted to hurry up and get back to the house" so that they would be safe...."
"During a visit at mother's home, [child's attorney] asked child, who was comfortably playing, to identify the people in photos in his room. Child calmly identified his mother, but when asked to identify his father, he 'sprang up, grabbed the photo and threw it as hard as he could across the room and back into his closet. [Child] then stood there, his body completely rigid, his fists clenched and his face turning red as he screamed, ' That f**king man. That f**king man. I hate him. He's stupid. He's a liar.' [Child's attorney] was alarmed at that complete change in demeanor. She 'tried to calm him down, [but child] ignored all of that and sat back down on the floor and almost immediately started playing again.' When questioned about it, child reiterated that his dad was a liar and that he was stupid, but was not interested in discussing why he made those comments or why he used that kind of language...."
"Child's extreme comments and behavior-including verbal attacks on father and Nicole and standing over Nicole with a baseball bat in the middle of the night-appear to reflect mother's influence...."
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