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

9 1/2 years. My...
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
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Answered in 25 minutes by:
1/1/2013
Law Educator, Esq.
Category: Family Law
Satisfied Customers: 121,066
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
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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.


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Customer reply replied 5 years 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.

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.
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Customer reply replied 5 years 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?

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.
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Customer reply replied 5 years 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?

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.
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Customer reply replied 5 years 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.

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.
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Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
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