She Cannot Drive To Visit Son

Question:

I live 3 hrs from my ex-husband, When our divorce was finalized he was ordered to do all the driving for visitation.

Now a judge has ordered me to do half of the driving, however my family Dr. had written a note to the judge saying because of my medical condition I can not drive to pick up my son.

The judge basically ignored the note from my Dr. and is upholding the order… What can I do to have the judge reconsider his order?

 

 

 

Answer:

There are two types of reconsideration that may apply to your situation.  Generally, a party may seek to have a court ruling reconsidered based upon the evidence provided or evidence that was unknown at the time of hearing, but such post-judgment reconsideration or appeal must be pursued within a specified time period, often within 30 days of the ruling.  However, child custody or visitation issues often are subject to ongoing review by the court based upon changes in the circumstances of the parties or the children.

If the period for post-judgment reconsideration or appeal has not expired, you must file the appropriate pleading setting forth the basis for reconsideration or appeal.  If the judge failed to address evidence presented, you would set forth what evidence the court may have overlooked that you believe should change the ruling.  If there was evidence that was unknown at the time of the original hearing, you may be allowed to present that additional evidence as well.

Your case may turn on the fact that a note from a doctor is not generally admissible evidence in court and if you did not have the doctor testify at the hearing the court may have determined it had no option but to reject your medical information.  If the original divorce judgment did not specifically state that the driving schedule was due to a specific medical issue, the court would have had no record from which to assume the medical reason applied.  However, as your medical condition was known at the time of the hearing, you may not be allowed to reopen that issue upon reconsideration.

If the post-judgment period has expired, you may be able to assert a change in circumstances since the ruling to warrant another review of the matter. Substantiated detriment to you or the children from the revised provision would be a reasonable basis to seek review.  In this case, you would be presenting evidence that the assumed detriment that was of concern to your doctor has, in fact, come to pass and that continued driving will cause you harm and possibly put your children at risk if you are driving.

You may anticipate counter-arguments that the order only requires you to provide transportation, not necessarily actually perform the driving, such that opposing party may propose that you have another family member or a friend assist in the driving.  Another argument often accepted by courts is that requiring one parent to drive six hours roundtrip with the children in the car on the return trip may put the children at risk due to the strain on the parent in making such a relatively lengthy trip.

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