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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 02-17-2011, 09:54 AM
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Default Police undertaking overrides order for access?

Hi everyone,

Here's my situation...

Stbx makes false claim to police that I threatened her if she didn't sign papers on the spot I would take kids away. Police interview me, tell them I have video to prove she's lying, they do nothing - just say to keep it civil (which I was entirely).

A few months later, she starts with a series of 4 more attempts to have me charged- and finally does, this time with uttering threats. BS. It goes to trial this summer.

The first time she tried to have me charged, she immediately withheld the kids from me, and did so until she was pressured to consent at a case conference almost two months later.

The second time, she did the same again. This time, as a result of the police charge, I had to sign an undertaking that states "visitation to be arranged through an agreeable third party". I contact her lawyer, give him 4 options I can think of for doing the exchanges, go to local access center and do the intake process (including paying the fees). There is no attempt to arrange access.

I serve her with a contempt motion, and immediately the access begins again, her lawyer responding that it was never her intention to deny access, she was just doing what she was told to do, blah, blah. BS.

Of the four suggestions I made, the local access center was one of them, friends was another, picking up my daughters at daycare and school (as I had always done, but now she arbitrarily disallowed), and my parents was the other. She chose to make my 67 year old father drive an hour each way, twice for the weekend, to pick up the girls and drive them a block down the road. Now my parents end up going on vacation, and the only time they could go interfered with one of the access weekends. I let her and her lawyer know, and she immediately snaps back that it is not that easy to just change the access provisions. BS.

Now I get an email from her lawyer saying that the undertaking I have signed with police trumps the family court order, and they have been more than generous allowing me to see the kids (forget what's in the girls best interest- she is doing this for the power, not thinking at all what is best for the kids!!!) They will not allow any other access arrangements for the girls to see me, she will not go to an access center (though her lawyer emailed me in the summer she would).

Looking for anyone that has dealt with an undertaking with the provision of access, and if they have managed to file a motion to get the judge to instate temporary access provisions, at least until the trial is done. I know I can argue that they have repeatedly denied access using these false allegations as their reasoning, and there is no provision in family law allowing them to do so. I have offered to pick up the kids at school and daycare, or have another family member or friend do the exchanges, and she will not allow any of that. I think I have grounds to proceed with a motion asking to force her to comply - any thoughts? Should I do the contempt motion instead?

Thanks!
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Old 02-17-2011, 12:04 PM
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Push forward on your contempt motion. You have offered reasonable alternatives and she's rejected them all.

Also
Quote:
This time, as a result of the police charge, I had to sign an undertaking that states "visitation to be arranged through an agreeable third party"
??

You "had" to? Or you were told to by the police? I wouldn't have signed anything without it being reviewed by a lawyer first.

Live and learn I guess.
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Old 02-17-2011, 12:09 PM
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in the peace bond or in the bail conditions always there is a restriction not going closer than x hundred meters to the b*tch, and the consequence of this is that you need to use a third party for the exchange, regardless of if you sign this or not.
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Old 02-17-2011, 12:41 PM
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Get a family friend to do the exchanges. Hell, see if there is a service that operates in the area that can do the exchanges for you. I know here in New Brunswick there are a couple of transport companies vetted by CPS.

She shouldn't get a say in WHO picks up the kids. It's YOUR access time, transport is YOUR issue. As long as they are transported safely, etc there should be ZERO issues. (easier said than done I know)

Email her lawyer and say you have made arrangements for X to do the exchanges for you until the criminal matter is settled, and that you expect the children to be provided as per the existing status quo, that refusal to follow the existing access arrangements constitutes denial of access and you will take appropriate measures if such occurs.

Don't give them choices, that's where you are making a mistake. You give her a choice in the matter and she's going to choose the option that screws you over the best. Take a stand for your kids, and tell her how it is.

I'd recommend using a 3rd party company, that way if she actively refuses to hand them over, you can have them provide it in writing that she denied access. Then you take that and file a contempt motion and ask for a police enforcement clause in your access arrangements.

You don't need HER permission to see YOUR children.
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Old 05-23-2011, 09:28 AM
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It depends on the conditions of you undertaking.

I am going through the same thing right now - fortunately my undertaking stipilates that my conditions are changeable by order from family court.

When in criminal court, you can try to have that judge reduce some of you conditions. Push that you're just interested in the best interest of the children and willing to accept alternate conditions that may accomplish the desired result (minimize contact between you and ex).

You must be very careful. You may be arrested if you break your conditions. In this respect it does supercede the Access Order.
I would assume your conditions are something along the lines of third party required for access exchange. No direct/indirect contact except for purpose of exchanging child with a third party present. Cannot be in a certain disance of your ex or in her county/town/whatever.

I can't imagine they included a condition about your access times with children. So as long as you meet your conditions - it would seem ridiculous to be told that 'they have been generous' so far.

If need be, file a motion in family court and ask for changes to the access routine that enable you to comply with your undertaking.
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Old 05-23-2011, 09:31 AM
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What a complete and total bitch! And that's not the first word that came to mind.
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Old 05-23-2011, 09:37 AM
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Quote:
Originally Posted by NBDad View Post

You "had" to? Or you were told to by the police? I wouldn't have signed anything without it being reviewed by a lawyer first.

Live and learn I guess.
He's been arrested and charged with a criminal code offense.
If he didn't sign it, he would be in jail. And stay there until his first appearence before a criminal court judge.
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Old 05-23-2011, 04:20 PM
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I have lived through this.

Yes you need a third party to make the arrangements, this does not mean you need her permission to pick up your daughter at daycare, she can refuse all she likes. Simply have your 3rd party "tell" her that is what you are doing. The same goes for everything else. Unless you have a custody order in place you do not have to accpet what her or her lawyer says about access, stop asking for permission.

In most cases you can park 300 meteres down the road and your children may simply walk to you for your time with them, I did. I had a family court judge over turn the "criminal" undertaking to allow me to pick up children at the home.

When in the position of being in a situation like you are and I was, one must be very careful, until being proven innocent at trial. Many women use this as a tool, to gain the upper hand, you do not have to permit this, however you must strictly adhere to the conditions, but I doubt there is anything that doesn't permit you from having the access your children deserve.
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Old 05-23-2011, 04:32 PM
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Quote:
Originally Posted by today View Post
Yes you need a third party to make the arrangements, this does not mean you need her permission to pick up your daughter at daycare, she can refuse all she likes. Simply have your 3rd party "tell" her that is what you are doing. The same goes for everything else. Unless you have a custody order in place you do not have to accpet what her or her lawyer says about access, stop asking for permission.
This is a very good point.
Just because a third party need be there when you go to picks the kid(s) up, doesn't mean you can't send someone in your proxy. If you're not there, there is no need for a third party. Same thing goes if you are picking kid(s) up from school or something. There's no "contact" to need a third party. Unless your ex decides to show up at school too. In which case go directly to the principals office and call 911.

My ex has pulled her "mutual consent" to a third party twice now.
I finally had to motion in family court for a specific person to be ordered third party to stop that nonsense. Maybe something to consider.

Last edited by wretchedotis; 05-23-2011 at 04:36 PM.
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