HOW TO WIN CUSTODY – DRAFT PLEADINGS FOR COURT BASED ON DOCUMENTARY EVIDENCE.
In a battle to be with your children? BM giving you the blues? False allegations?You have documented information? You’re inspired to fight? But you have no idea how to form that information into a decent Petition. I have been in that situation and I learned how to fight back from lost custody and I won full sole legal and physical custody.
In a previous post I explained WHY you want to know Civil Procedure and how to plead in court, and now I wanna show HOW I do that.
So, I wanna discuss how I would WEAPONIZE my documentation of BM shenanigans in a pleading for custody.
In this example we have a court order that states:
“When the child is with one parent, the parent without the child shall have the right to have a phone call visitation every evening between the hours of 6pm and 8pm. The parent with the child shall be responsible for facilitating each phone call.”
First off, every night I would call. If the parent will not answer or allow the call, I will at 8:01pm send an email to the parent stating,
“I am notifying you that I called to speak with lil’ baby at 6:52pm on 12/21/2019. There was no answer. I left a voicemail message. I waited and did not receive a call back.”
That is the entire extent of the documentation that I would need for my records.
When it is time for pleading, I may have, as I once had, over 200 incidents of this sort. So, I have options, and my concerns are balanced on need for aggressive self-representation, whether the judge might be annoyed by a 300 page petitions, whether the rules limit page sizes (many states and counties do, with exceptions), do I have the ink and paper for the copies etc.
I could plead out each individual violation separately for each day such as:
Now comes THE PETITIONER, appearing Pro Se, In his VERIFIED PETITION FOR CUSTODY AND SUPPORT. The PETITIONER seeks a change in custody of the MINOR CHILD based on a substantial change in circumstances pursuant to {STATUTE}. The petitioner seeks full, sole legal and physical custody of the minor child and support. And in support of which PETITIONER states as follows:
Count 1
Change of Custody due to repeated Visitation Interference
1. This court entered an order for custody, visitation and support on {DATE} (hereinafter “ORDER”). See Order Attached as Exhibit “A
2. The Order states in pertinent part:
a. Paragraph 15. “When the child is with one parent, the parent without the child shall have the right to have a phone call visitation every evening between the hours of 6pm and 8pm. The parent with the child shall be responsible for facilitating each phone call.”
3. On or about 6:52pm on 12/21/2019 pursuant to the order of this court PETITIONER called from number 888-888-8888 to telephone number 777-777-7777 to exercise telephone visitation with the MINOR CHILD.
4. No one answered the call on that day at that time.
5. PETITIONER left a voicemail message.
6. PETITIONER stayed with my phone between the hours of 6pm an pm.
7. RESPONDENT did not return PETITIONER’S call.
8. THE MINOR CHILD did not return PETITIONER’S call.
9. PETITIONER did not have phone visitation with the MINOR CHILD on 12/21/2019.
10. RESPONDENT failed to facilitate phone visitation on this day.
11. The continued practice of failing to facilitate phone communication fails to foster a loving and continuing relationship between me and the MINOR CHILD.
12. The continued practice of failing to facilitate phone communication diminishes a loving and continuing relationship between me and the MINOR CHILD.
13. Upon information and belief RESPONDENT willfully violated this condition of the agreement in a sustained attempt to alienate PETITIONER from a loving and continuing relationship with the MINOR CHILD.
14. RESPONDENTS Failure to allow phone visitation is not in the best interest of the MINOR CHILD.
Wherefore PETITIONER prays this court enter an order:
a) Finding that the RESPONDENT interfered with the visitation of the PETITIONER and the MINOR CHILD; and
b) Finding that the RESPONDENT fails to foster a continuing and loving relationship between the minor child and Petitioner; and
c) Finding that RESPONDENT interfered with the rights of the PETITIONER and MINOR CHILD to have visitation; and
d) Finding that RESPONDENT’S visitation interference is not in the best interest of the MINOR CHILD; and
e) Granting sole physical and legal custody of the minor; and
f) Granting Support entered against the RESPONDENT; and
g) Alternatively, for visitation to be made up by granting the PETITIONER up to 24 hours of physical overnight visitation;
h) And for any and all other relief this court deems fair, just and equitable.
AND so on and so forth. So sure, I could elect to file a 200-count complaint and lay out for each individual visitation interference. Though time and cost consuming for me (paper and ink), it would be more so for the other party. After all this is a copy and paste job. I could group like kinds of activity together in each count.
For that I would include a line for each date of violation in that count like:
3. On or about 6:52pm on 12/20/2019 pursuant to the order of this court PETITIONER called from number 888-888-8888 to telephone number 777-777-7777 to exercise telephone visitation with the MINOR CHILD.
4. On or about 7:19pm on 12/21/2019 pursuant to the order of this court PETITIONER called from number 888-888-8888 to telephone number 777-777-7777 to exercise telephone visitation with the MINOR CHILD.
5. On or about 6:02pm on 12/22/2019 pursuant to the order of this court PETITIONER called from number 888-888-8888 to telephone number 777-777-7777 to exercise telephone visitation with the MINOR CHILD.
6. No one answered the call on each of those days and times.
7. PETITIONER left a voicemail message on each and every day unless the voicemail was full.
8. PETITIONER stayed with my phone between the hours of 6pm an 8pm on each of these dates and times.
9. RESPONDENT did not return PETITIONER’S call on each of these dates and times.
10. THE MINOR CHILD did not return PETITIONER’S call on each of these dates and times.
11. PETITIONER did not have phone visitation with the MINOR CHILD on each of these dates and times.
12. RESPONDENT failed to facilitate phone visitation on each of these dates and times.
I would include in the prayer for relief:
g) Alternatively, for visitation to be made up by granting the PETITIONER up to 24 hours of physical overnight visitation FOR EACH VIOLATION;
ETC>>>
Obviously, other violations could take a similar shape in my petition. I’d make sure to describe only the things I know I can testify to. Basic rules of evidence state that a witness cannot testify to information not of a personal knowledge, with limited exceptions.
So, I make sure to form the count based on firsthand knowledge of actual events. I did not say for example, “RESPONDENT WOULD NOT ALLOW THE CHILD TO TALK TO ME.” That is not known to me and would violate the simple rule of evidence.
Here, there is a clear duty on the part of the other parent to act based upon the language of the order “facilitate calls.” There is a failure to act. That is what I know based upon my attempt to call.
The specifics about date and time are a road-map for discovery should these facts be disputed. This could be supported by phone records and a witness from the telephone company testifying to the accuracy of those records.
I do at one point make a statement of Belief based on my information at hand, “Upon information and belief RESPONDENT willfully violated this condition of the agreement in a sustained attempt to alienate PETITIONER from a loving and continuing relationship with the MINOR CHILD.”
Generally, this is how I would handle a verified complaint or affidavit; statements of fact and then letting the court and respondent know where I am making a statement of belief based upon information. I know I must have reasonable INFORMATION and BELIEF to state this in a verified complaint.
Sometimes this type of information must be submitted as an affidavit. In which case, I find, that the same general rules apply, statements of personal knowledge. The attach affidavit. Makes reference to the affidavit in the petition as Exhibit B. or the like.
All of this acts as a road-map for a GAL who when called to task must answer for an award of custody to a parent that would do this. They must also make findings about these allegations in their report.
Now the above example contemplates me having an order that the other parent is violating. So, that may not be the case. Even with no order I might make the case for custody based upon these same facts because they evidence a pattern of behavior by the other parent. Check your rules and laws for the way forward.
LISTEN, if a person does not plead a case, there is no case. If they do not put evidence and facts before the court properly there is nothing for the judge to rule on in favor of the party that failed to make a case. PERIOD. Stop being only on the defensive and make a case for your rights! For your child!
So, since I can not be in every state and country, I cannot know the laws and statutes for every state or pleading standards. I wish I could, but I don’t. (waiting on the Elon Musk Brain Implant for that. JK).
One must become familiar with their courts, statues and pleading standards in order to be able to take something from the internet, apply specific knowledge, and make it their own.
For example, “Foster a Loving and Continuing Relationship” was once language in the statute concerning custody in the state where I fought years ago. This may no longer be part of the statute. But if there is language within the statute that can be pointed to then I do that.
So, these are terms of art and terms of law that need to be understood form the perspective of the state/county in which a person is fighting. Look to your states statutes.
DO NOT USE INFORMATION FROM THE INTERNET AS A PLUG AND PLAY TEMPLATE. That’s stupid. I know because I have done it! Lol
What one could do is look at this as a strategy. Then look at actual pleadings from top law firms in one’s county/state for pleading standards and legal citations. You might be able to find them online. Or look in the courthouse. YOU CAN SURELY FIND THEM IN THE COURTHOUSE.
By the way, this is the same type of pleading of facts that I would use for the change in custody, petition to enforce order, contempt citation, etc.
But, nothing beats learning the law and civil procedure and the applying family law to that learning.
So, you may take my civil procedure series FOR FREE at http://www.professionallitigant.com/fathers
There’s nothing to buy. Just signup for FREE ACCESS to this video series and learn what I know about court. There is literally no catch. We typically change $997, But after seeing the types of questions and comments that go on in these groups, I recognize that this help is needed RIGHT NOW.
But remember, that series is not a course or a course on custody and family law. Nothing here or there is a substitute for legal advice.
Everyone who takes up this fight will need basic, rudimentary understanding of how courts work, or Civil Procedure.
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More to follow…
Jim Winner
Simply creating a foundation of solid parenting in the best interest
of the child.
GreatCosmicMothersUnite 