Child Modification and Drugs in Madison Co.

[merlin775]

My husband and his ex wife have a standing Pendente Lite Order that incorporated the Standard Parenting Clauses.  They have a Nov 13 court date to address my husband's withholding visitation because she failed one of her court ordered drug tests.  (Pendente Lite says one missed or failed test and visitation stops immediately (diluted = failed).)  His ex wife was ordered to submit to the court's color code drug test system and missed a total of 3 tests over the last year.  My husband has tried to be understanding and has let visitation continue.  However, when he received the diluted test results, he stopped visitation. 

She has retained another attorney who says (via letter to my husband's attorney) my husband is in contempt of many of the standard parenting clauses.  My husband is asking for sole legal, sole physical with ex having visitation. 

Ex wife's home was raided by Madison County STAC team and drugs, cash and drug paraphernaila was found; however, no charges were brought against her.  My husband's attorney has signed Affidavits detailing what all was confiscated from ex's home.  The initial Petition to Modify does not address WHY my husband is asking for sole legal and physical.  I do not think the judge knows about the drug raid; he only knows that something is going on with drugs because of the drug testing.  Ex wife refuses to give him full legal. 

I guess I question whether my husband should be pursuing full legal.  I know it is difficult to obtain; however, the drug raid is pretty damning evidence (in my opinion).  But if his exwife goes the route of contempt with the standard parenting clauses, I wonder if the judge will be more favorable to her because she says he is in contempt. 

Any advice/opinions would be greatly appreciated.

Thanks!

[CollegeDad]

The affidavidts are going to help but your husband needs to subpeona the police records on his ex wife and use those to find out the officers that were involved in the raid.  And then he needs to subpeona each of those officers to come in and talk about what they found in the raid.  First hand testimony is always much stronger than signed statements.  So, get the guys that raided her to testify for you. 

Also, she may accuse your husband of a lot of things and file to hold him in contempt, but, she is going to have to prove everything that she is accusing him of.  She will not have a very strong case against your husband if it is just her word against his on any of the contempt charges that she has brought forward.  If you husband can bring the drug use before the judge, her credibility will be very suspect.  And that is what he wants to do. 

Since he has started this fight, he might as well go ahead and ask for everything, full legal and all.  He may not get it in the end but, the fight has already started.  Without question, if I were dealing with a drug abusing ex, I would seek for control of the children and their welfare. 

[merlin775]

Thanks, College Dad.  I appreciate your advice.

Her drug use has already been brought before the judge.  They had an Oct 2 court date last year.  That is when she was ordered to undergo the court's color code system.  The judge just does not know about the drug raid.  Of course I am biased because I have really strong beliefs when it comes to drugs, but to be selling drugs (even if it is "just marijuana") out of your house when children are there is just insane in my opinion.  The Affidavits list almost 4 pounds of marijuana confiscated.  She even told him when he confronted her that selling the drugs did not bother her because the money was good!  (I am still, even after a year and a half, in disbelief.)

My husband does not know why charges were not brought against her and her husband.  She did say to him when he confronted her about it that they "gave up" their supplier which might be why charges were not brought against her.

My husband has really tried to work with her, although she, of course, would say otherwise.  He is concerned about the safety of his son first and foremost.  And in my eyes, anyone who sells drugs from a home in which children are present should not have any say-so when it comes to making legal decisions regarding their child - not when there is a law abiding parent who is going to put his child first and do the right thing. 

Any thoughts regarding the Father getting custody?  I know times are changing and more and more fathers are given custody, but this is still Alabama...

Again, thank you for your time and advice.

[livealittle]

I know several dads who have primary physical custody - in AL.

I will see if I can find the number to one of those dads that I know - Madison County - a big father's rights advocate. If I find it I will pm it to you.

[CollegeDad]

Judge Billy Bell in Madison county has done more than any other judge in the state of Alabama to swing the pendullum back toward fathers receiving custody of their children versus moms.  Count yourself lucky if your husband has Judge Bell as his judge.  He really does give fathers a fair chance at custody I am convinced. 

Now, you need to make sure that you have an excellent attorney to handle your case.  If you've already got an attorney, it may be too late to change but if not, then try to go with either Susan Conlon, Dinah Rhodes, Bill Burgess, or maybe even Leigh Daniels.  If your husband's ex wife has one of these as her attorney then your husband is going to have his work cut out for him. 

Livealittle has an even better list of Madison co. attorneys than I do. 

[livealittle]

most of yours College Dad are on my list as well.

[merlin775]

Thanks CollegeDad and livealittle.

The Judge is Judge Bell.

The ex recently changed attorneys to one who recently joined Rhodes and Creech.  My husband's attorney is a relatively new attorney.  I have actually questioned her a couple times (only because I worked for a family law attorney in MS for 5 years.)

Take the Pendente Lite.  It states that any failed drug test results in immediate termination of visitation pending further Order from the Court.  In my opinion, my husband should have waited to stop visitation until the court could rule on it.  However, hubby's attorney told him he could stop visitation.  She did read to him the court transcript from the day they went to court; however, I still think he should have waited.

Thank you so much for the info.

[merlin775]

CollegeDad:

Your comment about a good attorney scared me.  Although I realize this is not MY attorney, I still worry because she is a newly practicing attorney.  But she did work for HSV police in the past so she knows people and that might be of some help. 

However, I think the drug raid is really damning evidence.  From what I understand, Judge Bell is hard on drug users.  If he knew she was selling drugs, wouldn't that put a horrible taste in his mouth ON TOP OF the missed and diluted drug tests?  To me, selling drugs and using drugs are two totally different actions.  I have a tendency (yes, I am biased) to be harder on someone who sells them ESPECIALLY with children in the home.

My husband has been keeping notes for about 3 years now and has documented every time his ex has done something he has not agreed with, etc.

His ex's attorney has filed Interrogatorie and Requests for Production.  I told my husband that he should do the same to her along with Request for Admissions and make her admit to selling drugs from her home.  Does the judge actually look at that stuff though?

Thanks again... I am analyzing everything now, and I greatly appreciate your help.

[livealittle]

in his interrogatories ask for

diclosure of all serial numbers of all firearms in the house - registered or un-registered
copies of police reports of all arrests or questionings
copies of all tickets and citations
names of everyone who frequents their residence (this to list all the known drug users who stop by all the time)

and just run down this path as far as you can go.


my x asked an open ended question as to why I believed he shouldn't have standard overnight visitation. I listed my reasons and included "has frequent visitors who are drug users and frequents drug users residences with the children " and provided copies of the newspaper reports where he had known drug users come over and one of their houses had a meth lab blow up and kill a man, where he visited - with the kids! - a neighbor who had a drug raid on his house for a meth lab with photos and included them in my discovery - IMHO being subjected to this environment is not in the children's best interest.

it was soon after receiving all my answers that his attorney fired him. I imagine he wasn't truthful about all this when he hired her.

[merlin775]

Fantastic advice, livealittle!  I never thought to ask those kinds of questions.

There is a question regarding why my husband thinks his ex should not have custody.  My husband is okay with overnight visitations right now because his ex has moved from that house.  What he is not okay with is her being able to make legal decisions regarding his son.  Like I said before, he has been keeping notes for about 3 years. 

Would it help for him to do an Affidavit regarding the conversation he had with his ex where she admitting to the selling of the drugs?  About 4 or 5 months passed between the drug raid and my husband's finding out about it.  He confronted her immediately when he heard the rumors.

Thank you!  I really appreciate it.

[livealittle]

Fantastic advice, livealittle!  I never thought to ask those kinds of questions.

There is a question regarding why my husband thinks his ex should not have custody.  My husband is okay with overnight visitations right now because his ex has moved from that house.  What he is not okay with is her being able to make legal decisions regarding his son.  Like I said before, he has been keeping notes for about 3 years. 

Would it help for him to do an Affidavit regarding the conversation he had with his ex where she admitting to the selling of the drugs?  About 4 or 5 months passed between the drug raid and my husband's finding out about it.  He confronted her immediately when he heard the rumors.

Thank you!  I really appreciate it.

and documentation you can provide will help add weight to your husband's case. Newspaper reports are great because they come directly from the police blotter. Finding out the officers involved and subpeona-ing them as College Dad said, will add more weight than just the newspaper reports. You can also have the attorney depose the officers involved, and your husband's x and any associates that your husband is concerned the child will be around. This costs a bit of money, so it all depends on how much you are willing to pay and how important this is to him.

in the long run, the NCP's have great latitude to do whatever and go whereever when they have the child(ren). If they misbehave while having the child, it can be very hard to get anything changed without a disaster striking - example, NCP has a wreck with the child in the car while DUI of alcohol or drugs, the police raid the house while the kid is there.  In some ways, all the rest of the stuff he said and she said is heresay and not admissible, however, the attorney can depose the NCP and ask about these things. When you have a newspaper article - front page complete with pictures - of the guy arrested for the meth lab explosion and that guy is a known associate of the NCP, it carries a little more weight than "she said she sold drugs from the house".

[merlin775]

I see what you are saying.

No arrests were made in the case.  All we have are Affidavits signed by his ex, her husband and the STAC team guy that say what they confiscated from the house.  If it comes down to it, my husband will depose his ex.  And probably members of the STAC team who were present.  Hopefully, his ex will get scared by then and relent.

Like I said, my husband wants full legal, full physical with her having visitation.  She is fighting, even though her previous attorney informed her that it would be best if she just agreed to what my husband wants simply to keep the drug raid information out of court.  But she's going full force.

They have court tomorrow for a Motion to Stop Visitation which my husband filed because she failed a drug test. 

[CollegeDad]

If your husband has Tina McDonald as his attorney, she is a friend of mine.  Yes, she did work for the police department and she has recently started practicing as an attorney.  While she maybe does not have the focus on family law exclusively that I normally recommend for people in these cases, I can tell you that she will fight for your husband with everything that she has.  I really like her and I know as time goes on she will only get better.  As far as handling all of the police related matters in this case, your husband is extremely lucky to have her.  If there is any scrap of information available in the police department that your husband can use, she can find it and as a bonus she knows every officer in town.  She probably knows every office involved in the raid personally.  I'd say your husband is in pretty good shape on that front.  Let us know how it goes. 

[merlin775]

Yes, it is Tina McDonald.  She is a friend of the family and grew up down the street from my husband's stepfather. 

Thank you for your kind words.  I adore Tina, but it's like you said, this is not her focus but there are advantages to her having been with the HPD.

Court went as expected.  My husband agreed to continue standard visitation because mom passed the hair follicle test.