Access to grandparents and how to fight alcool claims?!

[leroadrunner]

Long story short,

- We signed a separation agreement through mediation a couple years ago, this was filed as the divorce.
- Now I am trying to revise some of the schedule with my ex for the children.
- My ex-wife has a deep hatred for my mother
- There is a clause which stipulates that the children cannot stay at my mothers, now Id like to revisit that. I had agreed to this solely to get the paperwork done as my ex had dragged to paperwork forever when we were drafting the agreement.
- The reason my ex and her lawyer state that my mother is a heavy drinker! But to my ex, anything more than 1 glass of wine is a heavy drinker (she is a religious nut too - and they are totally against alcool).

In reality there is no evidence whatsoever of these claims. My mother would be ready to do tests, whatever is needed. To top it off the children have a great relationship with their grandmother.

I am tempted to tell them (her and her lawyer) that the last letter they sent could be considered defamation. Thats after I send them a request to change that clause as the children have a great relationship with her.

Anyways, how do you suggest I approach this claim to remove this clause now?

Just using you guys as a sounding board and to get ideas! Need a good strategy to handle this.

Thanks!

PS: Great forums here, would love if this place supported Tapatalk!

[HammerDad]

As for your mother issue, I normally don't suggest this but....I'd ignore that clause of the order. It is pretty much unenforcible on her part.

She can state that according to clause X of the agreement you aren't supposed to stay overnight at your parents due to your mom's drinking issues.

You can reply that your mother does not have a drinking issue and that you are permitted to use your reasonable judgment about where you spend time. And then reassure her that you wouldn't put the children in harms way.

Should she take you to court for contempt, you ask for her motion to be denied with costs, and that the clause be struck from the agreement for lack of evidence (assuming your mom doesn't have 3-4 DUI's under her belt and doesn't have a drunken disorderly for running onto Skydome and sliding into home plate). You can further argue that it is in the childrens best interests to know their entire family and be allowed to associate freely with them.

I look at this clause much like morality clauses. Where one party can't have persons of the opposite sex around the kids overnight. This isn't Texas and judges just aren't about to enforce these clauses.

[Trix]

What effect your exiting divorcde agreement will have on your ability to facilitate contact between your children and you mother is a point that is probably better left to a discussion with a lawyer. i.e. the process of getting the matter revisited.

That being said, I might suggest a couple of things.

First. You might not want to engage in extensive defence of the allegations. This may be necessary if the drinking is cited in the agreement, but if not, defending against it rigourously might seem to lend legitimacy to the claim. Instead, put them to the "strict proof thereof". In other words: file to have this changed based on the positives for the children and not a defence against the negatives your ex has put fowards. This puts her in a position to articulate why she has concerns (prove) why the positive arguments you make aren't enough to support the requested change.

The important point, then, is how you approach the subject.

Fostering a relationship with your parents does a number of things. Besides fostering a good relationship with extended family member and and appreciation for the importance of family and differences in generational learning, grandparents can offer a more stable reflection of family at times where the nuclear family (you and your ex) are in periods of high conflict. Your, and her parents, are in a position, removed from that conflict to focus on things with your children in what can sometimes be a far less emotionally charged environment without the backdrop of mommy / daddy...or even momme V.s. daddy. This can be an extremely stabalizing influence for the children.

Just remember, it goes both ways: your reference to her as a religious nut is a little stone-throwing. Whatever their religious views, it is still a reflection of THIER mothers family and there is no reason for them not to be exposed to it.

Just a little food for thought,

Trix

[kevindell]

- There is a clause which stipulates that the children cannot stay at my mothers,

I asked for something similar in my custody fight, except it was the sister-in-law I was worried about. The judge told me that my wife can leave my kids with her sister during her access. Nothing I can do about it. If there is evidence of the kids being at risk I am to call CAS.

[hadenough]

Specifically excluding contact with a particular person (unless there's compelling legal reasons and proof that the person(s) is a threat/danger) is ridiculous and not enforceable..

[billm]

I would ignore the clause as (from what you have told us) it is not reasonable.

If it comes up, I would simply state that the kids having a relationship with their grandmother is in their best interests and what is best for them is your guiding principle.

[leroadrunner]

Great info guys, thank you...that really helps!

[leroadrunner]

Here is my reply to this, let me know your thinking...

Unfortunately for your client, anything more than 1 glass of wine is considered heavy drinking by her standards. Given that the children have a great relationship with their grandmother I do not see the reason for the existence of this clause. On the contrary, I would rather encourage and foster the bonding of their relationship with their grandmother. On that basis I will move to have this clause removed by the court. This clause is not enforceable and will be easily be thrown out in court. Please be realistic when you speak to your client about this issue.

Thanks!

[arabian]

Early in our divorce wars, one of my ex's affidavits stated that I was a drug addict (totally ridiculous). I was so incensed by this accusation that I went to a doctor and got him to sign a medical form for a drug/toxicology screen. I gave it to my lawyer. The issue never came up again as I believe my lawyer told the other lawyer in one of those off-the-record conversations that if they wanted to pursue the matter I was quite willing to undergo drug/alcohol screening at my ex's expense (fairly expensive at a private lab). That was the last I heard of it and the matter was never brought up again.

You put into an agreement the children would not stay at the grandparents. You could have your lawyer simply email the other lawyer requesting consent to amend the agreement. Failing that have the lawyer say that you are prepared to take the matter before a justice and that costs will be sought. Any decent lawyer would agree as the exclusion of grandparents from the lives of children is not commonly sought out. I would be careful about breaching an agreement that you agreed to in the past. Better to do it the right way.

[HammerDad]

Here is my reply to this, let me know your thinking...

Unfortunately for your client, anything more than 1 glass of wine is considered heavy drinking by her standards. Given that the children have a great relationship with their grandmother I do not see the reason for the existence of this clause. On the contrary, I would rather encourage and foster the bonding of their relationship with their grandmother. On that basis I will move to have this clause removed by the court. This clause is not enforceable and will be easily be thrown out in court. Please be realistic when you speak to your client about this issue.

Thanks!

Brutal/bad/confrontation/accusatory would be my opinion of this response.

I would simply response with:

Dear Satan's legal Counsel,

Thank you for your [letter/email] dated X. Unfortunately we do not agree on the matter at hand.

As parents we are able to use our reasonable judgment when determining whom the children shall associate with. I am of the position that associating the children with my mother is not unreasonable as she does not pose a danger to the children. Further, it is my position that it is in the children's best interests that their relationship with their entire family be facilitated.

As such, I respectfully request your client refrain from attempting to dictate how I parent or whom I associate with during my parenting time as I do not attempt to do so during her parenting time.

Thank you very much,

Dad

[blinkandimgone]

brutal/bad/confrontation/accusatory would be my opinion of this response.

I would simply response with:

Dear satan's legal counsel,

thank you for your [letter/email] dated x. Unfortunately we do not agree on the matter at hand.

As parents we are able to use our reasonable judgment when determining whom the children shall associate with. I am of the position that associating the children with my mother is not unreasonable as she does not pose a danger to the children. Further, it is my position that it is in the children's best interests that their relationship with their entire family be facilitated.

As such, i respectfully request your client refrain from attempting to dictate how i parent or whom i associate with during my parenting time as i do not attempt to do so during her parenting time.

Thank you very much,

dad

^^^this^^^.

[arabian]

I would remove the "doesn't pose a danger" and instead state "important to encourage relationships with grandparents and extended family. To state "doesn't pose a danger" implies that you recognize that it could be a danger but that you personally have decided it doesn't. In other words, don't draw attention to the negative aspect of your separation agreement. If they feel she is dangerous then the onus is on them to prove it I would think.

[leroadrunner]

You guys a re great. really learning here!

Thanks!

[Tayken]

First. You might not want to engage in extensive defence of the allegations. This may be necessary if the drinking is cited in the agreement, but if not, defending against it rigourously might seem to lend legitimacy to the claim. Instead, put them to the "strict proof thereof". In other words: file to have this changed based on the positives for the children and not a defence against the negatives your ex has put fowards. This puts her in a position to articulate why she has concerns (prove) why the positive arguments you make aren't enough to support the requested change.

Not that I don't disagree with Trix but, you have to be careful as the "strict proof thereof" in a civil matter is known as the "balance of probabilities". Basically, the evidence is weighed on the factors of "probably true" and not the "strict proof theerof" which often gets interpreted as "beyond reasonable doubt" (criminal matters).

If you are dealing with a negative advocate solicitor who will send along any baseless allegation or statements of "belief" from their clients and present them as "facts" without rigour you could find yourself in a sticky situation if you don't address them.

The classic response to a non-response from a negative advocate solicitor is that the allegations being made by their client *must* be true because there was minimal or no response. They will wave their finger in front of the judge at you. Often, judges when the arguments get ridiculous (i.e. my client *had* to do what they did because they didn't know what the other party was going to do next, etc...). Clearly, these negative advocate solicitors, as identified by William Eddy and other experts, work solely on the negative of matters and do not focus on resolution to problems, just creating them and litigating them.

The first words when the judge calls them on their attempts is... "I didn't known -insert statement here-". The clear identifier is when they, as a registered and governed professional, claim to not know an aspect of a Rule in accordance with disclosure, child support guide lines, etc... Watch for these cues.

Also, based on the OP's original posting it appears that the OP may possibly be dealing with an over anxious parent. The court is a dismal place to have to deal with over anxious parents who take all their fears and/or anxieties and/or worries to have resolved. The vast majority are irrelevant and best addressed by an expert mental health clinician and not family court.

Good Luck!
Tayken