Quote:

---

Originally Posted by excon

Hello m:

No. The hearing is the earliest that ANY testimony will be heard... You won't get an earlier hearing... And, I would NOT take her word for ANYTHING. In fact, you shouldn't even be CONTACTING her to hear her word. You can't even contact her through a third party. So even if there WAS something that she could do, you CAN'T ask her.

excon

---

This is NOT true. He can file motion to modify the TRO before the hearing date (Cal. Fam. Code Section 235) and I'd recommend he do so. He doesn't have to wait until November to see his son. Nonsense.

As far as contacting the ex through third parties, he can have his lawyer contact her for purposes having to do with the TRO without violating the order. I've had several cases like this and the lawyer is typically the go-between. Additionally, most TROs state no contact " except for brief and peaceful contact as required for court-ordered visitation of children unless a criminal protective order says otherwise." [mandatory form TRO, p.2, para. (b)]

Quote:

---

Originally Posted by cadillac59

This is NOT true. He can file motion to modify the TRO before the hearing date (Cal. Fam. Code Section 235) and I'd recommend he do so. He doesn't have to wait until November to see his son. Nonsense.

As far as contacting the ex through third parties, he can have his lawyer contact her for purposes having to do with the TRO without violating the order.

---

I read through Cal. Fam. Code Section 235 and it says that either party can file motion to modify of revoke the TRO. I plan on substituting attorney's shortly. The lawyer I have doesn't seem interested in helping me to see my child before Nov. I obtained a form FR-111 which is an OBJECTION TO FAMILY COURT SERVICES REPORT AND RECOMMENDATION. Is this form even the right avenue to make the objection to a pro tem judge? I know that you said it might be fruitless to even make an objection because of insufficient grounds. Do you think this is even worth a shot?

Quote:

---

Originally Posted by morgan duncan

I read through Cal. Fam. Code Section 235 and it says that either party can file motion to modify of revoke the TRO. I plan on substituting attorney's shortly. The lawyer I have doesn't seem interested in helping me to see my child before Nov. I obtained a form FR-111 which is an OBJECTION TO FAMILY COURT SERVICES REPORT AND RECOMMENDATION. Is this form even the right avenue to make the objection to a pro tem judge? I know that you said it might be fruitless to even make an objection because of insufficient grounds. Do you think this is even worth a shot?

---

That sounds like a local form your county uses probably to tell the judge you disagree with the recommendation of the mediator. Since you haven't been to mediation yet it's too soon to do anything with that form. Typically before a case is heard (on your first trip to court) the bailiff asks you to sign a consent form to have a Judge Pro Tem hear the case. Once you do it's too late to change your mind. My assumption is that you stipulated to the Pro Tem Judge when you went to court the first time.

Like I said before, I doubt that challenging the Judge Pro Tem's decision is worthwhile. Since you have mediation on Sept. 15, you can do is one of two things. First, you could file your motion for custody/visitation modification now. It will be set for hearing after your mediation date. Then just show up in court with the mediation report and see how it goes. Alternatively, you could wait until after mediation and then file an ex parte with alternative relief being the OST (order shortening time) and have it set for hearing then. But frankly, I can't see any reason to wait. Just see if you can time the setting of the hearing to a date within about a week after mediation to allow time for the mediator to get the report and recommendation to you (ask Family Court Services how long it takes after mediation for them to get their reports out). You want to make sure that the mediation report is ready before the court date because the judge has to confirm you've been to mediation before he can make a decision on custody (mediation is required by Fam. Code section 3170).

Quote:

---

Originally Posted by cadillac59

That sounds like a local form your county uses probably to tell the judge you disagree with the recommendation of the mediator. Since you haven't been to mediation yet it's too soon to do anything with that form. Typically before a case is heard (on your first trip to court) the bailiff asks you to sign a consent form to have a Judge Pro Tem hear the case. Once you do it's too late to change your mind. My assumption is that you stipulated to the Pro Tem Judge when you went to court the first time.

Like I said before, I doubt that challenging the Judge Pro Tem's decision is worthwhile. Since you have mediation on Sept. 15, you can do is one of two things. First, you could file your motion for custody/visitation modification now. It will be set for hearing after your mediation date. Then just show up in court with the mediation report and see how it goes. Alternatively, you could wait until after mediation and then file an ex parte with alternative relief being the OST (order shortening time) and have it set for hearing then. But frankly, I can't see any reason to wait. Just see if you can time the setting of the hearing to a date within about a week after mediation to allow time for the mediator to get the report and recommendation to you (ask Family Court Services how long it takes after mediation for them to get their reports out). You want to make sure that the mediation report is ready before the court date because the judge has to confirm you've been to mediation before he can make a decision on custody (mediation is required by Fam. Code section 3170).

---

What form is used for custody/visitation modification? Also do I have to have my lawyer submit the form, because I'm going to substitute attorneys and I don't have an appoitment with the new attorney until Aug. 25? I have the form for substituion of attorney. Should I just fill it out and change attorney's now? I don't know how much of my retainer he already used and I'm a little bit strapped for cash.

Quote:

---

Originally Posted by morgan duncan

What form is used for custody/visitation modification? Also do I have to have my lawyer submit the form, because I'm going to substitute attorneys and I don't have an appoitment with the new attorney until Aug. 25? I have the form for substituion of attorney. Should I just fill it out and change attorney's now? I don't know how much of my retainer he already used and I'm a little bit strapped for cash.

---

You can wait to substitute out your present attorney until you decide to hire someone else, and the new attorney will fill out the form for you and file it. The form for filing the motion is the mandatory OSC and Application for Order and Supporting Declaration forms (FL-300, FL-310).

I think you mentioned once being in Fresno County. You might want to take a look carefully at their local rules on mediation and child custody hearings. This is one of those matters that vary considerably from county-to-county. Fresno does things VERY differently compared to other counties. http://www.fresnosuperiorcourt.org/_...20(1-1-08).pdf

Quote:

---

Originally Posted by cadillac59

You can wait to substitute out your present attorney until you decide to hire someone else, and the new attorney will fill out the form for you and file it. The form for filing the motion is the mandatory OSC and Application for Order and Supporting Declaration forms (FL-300, FL-310).

I think you mentioned once being in Fresno County. You might want to take a look carefully at their local rules on mediation and child custody hearings. This is one of those matters that vary considerably from county-to-county. Fresno does things VERY differently compared to other counties. http://www.fresnosuperiorcourt.org/_...20(1-1-08).pdf

---

It looks to me that the mediators report doesn't have to be prestented until two days before the hearing for child custody/visitation. Is that going to mean that I won't be able to get a sooner hearing before Nov. 20?

Quote:

---

Originally Posted by morgan duncan

It looks to me that the mediators report doesn't have to be prestented until two days before the hearing for child custody/visitation. Is that going to mean that I won't be able to get a sooner hearing before Nov. 20?

---

Not at all. File a motion and they are usually set for hearing (absent an order shortening time) within about 5 weeks of filing.

Quote:

---

Originally Posted by cadillac59

Not at all. File a motion and they are usually set for hearing (absent an order shortening time) within about 5 weeks of filing.

---

I sure haven't been hearing a lot about the mediation going in my favor. Especially with the TRO. Mostly I've heard that the mediators in Fresno county are biased towards men and because I have a criminal record that probably won't help. Now my wife is all pissed off because the hearing got continued and she sent me an email saying she's definitely going to wait until the hearing on Nov. 20. I am trying to get her to mediate with me through a new woman lawyer that I hired but I guess its up to her at this point.

Quote:

---

Originally Posted by morgan duncan

I sure haven't been hearing a lot about the mediation going in my favor. Especially with the TRO. Mostly I've heard that the mediators in Fresno county are biased towards men and because I have a criminal record that probably won't help. Now my wife is all pissed off because the hearing got continued and she sent me an email saying she's definetly going to wait until the hearing on Nov. 20. I am trying to get her to mediate with me through a new woman lawyer that I hired but I guess its up to her at this point.

---

In my experience mediators pay little or almost no attention to the criminal record of one of the parties or the presence of a TRO in making custody recommendations. And the reason is obvious: You don't lose your custodial or visitation rights simply because you have a criminal conviction (unless of course the crime directly involves the children).

People with restraining orders against them and/or criminal records get plenty of visitation time with their kids every day in family law court in every county in this state. Mediation will probably turn out better than you expect.

Quote:

---

Originally Posted by cadillac59

In my experience mediators pay little or almost no attention to the criminal record of one of the parties or the presence of a TRO in making custody recommendations. And the reason is obvious: You don't lose your custodial or visitation rights simply because you have a criminal conviction (unless of course the crime directly involves the children).

People with restraining orders against them and/or criminal records get plenty of visitation time with their kids every day in family law court in every county in this state. Mediation will probably turn out better than you expect.

---

Hey Cadillac. I'm finding it difficult to share your enthusiasm about mediation even though I realize that in theory the mediators should not be biased. What do you think about trying to delay mediation until after the hearing on the restraining order? With the TRO out of the way it would be less likely to influence the mediator. I know this would mean a longer amount of time before I could see my child but I feel like it might be worth it to wait. Also do you know what form I would need to petition the court for modification of the TRO and how could I make a motion to delay mediation? I know you mentioned this to me earlier and it can't hurt to give it a shot even if the court denies my motion. At least it could show my desire to pursue this matter especially in espect to my child.

Quote:

---

Originally Posted by morgan duncan

Hey Cadillac. I'm finding it difficult to share your enthusiasm about mediation even though I realize that in theory the mediators should not be biased. What do you think about trying to delay mediation until after the hearing on the restraining order? With the TRO out of the way it would be less likely to influence the mediator. I know this would mean a longer amount of time before I could see my child but I feel like it might be worth it to wait. Also do you know what form I would need to petition the court for modification of the TRO and how could I make a motion to delay mediation? I know you mentioned this to me earlier and it can't hurt to give it a shot even if the court denies my motion. At least it could show my desire to persue this matter espesially in espect to my child.

---

I can't see any benefit in delaying mediation. Especially since you don't know what the result of the trial on the TRO will be. You are going to get some access time with your son, most likely unsupervised, so I wouldn't delay getting the issue of visitation before the court.

To file a motion for modification of the existing custody orders, you use the OSC form (FL-300) and attach the Application for Order and Supporting Declaration (FL-310), and to that attach a copy of the TRO. Be sure to check off the box "Modification" along with the boxes for Child Custody and Visitation. If you end up self-represented you can get help in filling out the form and complying with any local rules from the Family Law Facilitator's Office at the courthouse.

Quote:

---

Originally Posted by cadillac59

I can't see any benefit in delaying mediation. Especially since you don't know what the result of the trial on the TRO will be. You are going to get some access time with your son, most likely unsupervised, so I wouldn't delay getting the issue of visitation before the court.

To file a motion for modification of the existing custody orders, you use the OSC form (FL-300) and attach the Application for Order and Supporting Declaration (FL-310), and to that attach a copy of the TRO. Be sure to check off the box "Modification" along with the boxes for Child Custody and Visitation. If you end up self-represented you can get help in filling out the form and complying with any local rules from the Family Law Facilitator's Office at the courthouse.

---

When I motion for modification of custody, won't the TRO block the court from actually modifiying custody/visitation? Isn't the court just going to say that there's a TRO in place and that they can't modify custody/visitation until that issue is resolved?

Quote:

---

Originally Posted by morgan duncan

When I motion for modification of custody, won't the TRO block the court from actually modifiying custody/visitation? Isn't the court just going to say that there's a TRO in place and that they can't modify custody/visitation until that issue is resolved?

---

No. FC 235 says that TROs are modifiable. I already explained that.

Quote:

---

Originally Posted by cadillac59

No. FC 235 says that TROs are modifiable. I already explained that.

---

I am wondering what can I bring to mediation as far as declarations from friends, community, and others concerning how I had previously related to my son. Is there anything else I can do to prove to the mediator that I am a good father and it is in the best interest of my son to have a fair amount of custodial time with me? The mediation papers say that anything that I want to introduce to the mediator needs to be given to my wife before mediation. How long before the mediation do I need to serve her with these supporting declarations so that I can bring them to mediation? Is there anything else you can tell me that will help me with mediation?

Quote:

---

Originally Posted by morgan duncan

I am wondering what can I bring to mediation as far as declarations from friends, community, and others concerning how I had previously related to my son. Is there anything else I can do to prove to the mediator that I am a good father and it is in the best interest of my son to have a fair amount of custodial time with me? The mediation papers say that anything that I want to introduce to the mediator needs to be given to my wife before mediation. How long before the mediation do I need to serve her with these supporting declarations so that I can bring them to mediation? Is there anything else you can tell me that will help me with mediation?

---

Look, the questions you are asking about serving documents on the other side before they are given to the mediator at mediation are governed by local rule, in your case Fresno County Superior Court Local Rules. I don't practice in Fresno County and every county is different they way it conducts mediation and how it uses mediation reports. Some counties don't even allow mediators to make recommendations and the judges in those counties never hear about what happened at mediation. Other counties allow recommendations. Yours does. Read the Fresno County Superior Court local family law rules (which are available online), ask a local attorney who knows the rules, or contact the family law facilitators office, or Family Court Services for the answer. It's strictly a Fresno County question. I'm not going to take the time to look up the rule for you. That's beyond the scope of this board and beyond my interest in participating.