never married chance my child was born in one thousand nine hundred six throughout the child's life he says and her was the primary studion of the minor child during this time until two thousand and eight approximately the parties somewhat got along even to the extent that they would share holidays together at missing ender's parents house he would have to make christmas he had pretty much the entire summer time at thanksgiving and also i mean you start in two thousand and and approximately towards the end of towards the end of the negotiation and right before the trial in august two thousand nights later mr burnett came back with three positive cocaine tests he had here test done here test and noted that he was testing positive for cocaine and there were three tests that were done at this time and they all  today and they were they believe that my client was still having some sort of relationship mr affront today they wanted something in the order that provided that there would be no contact between chance see continuing to see mr frank today in fact she thought it was a positive relationship even went on to say that if for some reason he's seen and then we're going to maintain a relationship then they as harmful to chance so there was a problem with chance being with that in my plan stated that she was not with bin anymore but then and  once casey found out that she should she should go to counseling if she's going to reintegrate casey and chance together she didn't do that she and said she would pick herself out of the situation if if ben wanted to see  a chance when you see ben ben would come over she would leave and again so i drafted my order that contained all of the language that was contained in the transcript of the august seventeenth hearing time where i presented it to the court and at that time seeing that in the transcripts of that generate hearing the court said it would not approve of any agreements that did not contain language that then would not live in the house together of you supposed to the three and the other and even at that time mr cox agreed that if it's not relationship between his c and then but it was the relationship between the three of them time when we were discussing this did she ever say that chance would not see that that was a given from the get go and we're coming up with this agreement there was nothing in the spread of records on august seventeenth that said anything about be whatsoever if that was the reason why they were green which it was not it was because he tested positive three times for cocaine and that should have been in the record some of the should've brought that to the attention of the judge at that time nobody it was not until afterwards and lo and behold mr burnett test test negative for cocaine and then in the spring of two thousand and time meanwhile i filed my motion and force we have a hearing on that the judge said says that the only way it's going to enforce that agreement is if there's something in there that says then can't live in the house and he can't see the three of them can't you gather specifically the judge says i will not approve an agreement that does not include him not living in the house with that in mind in june of two thousand and ten i filed another motion in force although we did not believe that we had to put anything in last one that at no time shall the child be exposed to respondent and her former husband and her friend taped together except at drop off and pick out of the minor child that's exactly which that we had on january  that it was the agreement of the parties like you said that i don't think the truck west accept that but the trial court found that yes indeed it was in the best interest of the child for custody to remain with casey and her and then we went back on january eighth when i asked to found my motion after we had longer the agreement and cream is changed both by circumstances and additions to the agreement right during two thousand and ten circumstances change with the for the better for the worse there were some additional information available to the court and you believed you had it to be creaming if you wanted to force those things that the court asked for and those things which seem to concern the parties ye and is aware of either additional information for changes your contention would be there were changes but there is additional information and additional considerations in part because what's been handed what is it that requires how could it be here for the court to say i'm not in here that i'm going to make the decision that i think he's made i'm not a i don't think i'm being obtuse you know i mean i understand what you're saying but i mr two thousand in the act and everything was spread of record on that day and i know that counsel from up here and say that they had no idea that ben was going to be in chances like it would say that's completely inaccurate in the testimony shows that that was an accurate so from that time forward there was no changes so the court found at that time that it was in the best interest i think the court can go back now and say oh wait now it's not in the best show why the child shouldn't be in front of  think if they if there was a problem with ben the order should have been entered the way it was spread of record in august and afterwards if they had a problem with then or claim that they didn't know ben was going to be around the child  and i believe that that is here for the court to at one time say that it's in the best interests of the child and then to come back six months later after a week with the judge one of our staff and then say would no longer in the best interest let's keep in mind at the same time here all the sudden my tests negative for cocaine so it's no longer in the system ready to go forward with trial so in effect for those six months a key for him ty time to be able to test negative back in august that's why we were there the day of trial and all the sudden they wanted to settle and allow my client have a c because he tested positive not once not twice but three times for co pay when we had trial done this year or five years would change girlfriends every year prior to the summer so that every year during the summer chance to stamford new girl because mike had a new girlfriend mike did have his own house during these years mike instead would child came back down here and there were allegations of abuse up in wisconsin she continued when he came back after the summer to try to get him into counseling they agreed before she left to go see krause who was the media at the time that then became a child bride when he started my client already after and had him in counseling and the same day that they had their first point was the same day that mr prosphora letter and said chance from his own counseling so that she changed that counseling that counseling was originally between on the counselor her and the child just to work on some homework issues and the custody battle she changed and she made it just for a chance and then chance went that was a list for fall and so then chance went to his particle then came back here for the summer and then and i think towards the end actually of that school year was far thought was a graduate student in class who went to another counsellor and then we came back after the summer of chance and there was no mention of mr frankie that was because it was the understanding of all the parties that he was completely out of the picture a little over two weeks before that agreement was spread of the record the  to post pursuit of this case and indicated in that deposition that there was absolutely that she was divorcing him and he was no longer in the picture that was everyone's understanding shortly after the agreement spread of the record before it was signed by the judge it became facts came to light that she was continuing her relationship with mr frank that concerned not only the petitioner but the child representative and the court and it and the hearing which they responded tempted to enforce the agreement of august seventeenth as she stated a moment ago the court specifically said with with mr price you back in the picture which she admitted at that time he was he was back she was back until your relationship with him with him back in the picture the court was not going to approve any agreement that had him in a continuing relationship with with the response he specifically stated further that if he was going to even consider approving any agreement with him in the picture he would require presentation of evidence to determine that it was in the child's best interest a moment ago counsel is indicating as judge expect pointed out that they had added quite wish to the august seventeenth agreement that agreement and tried to enforce that there was never that agreement was never proved by the court they were fundamentally changing their agreement that was spread but the court didn't specifically request language it said that it didn't want him in the picture and if you was if it was going to approve of any agreement that had him in the picture it would require presentation of evidence that it was in the child's best interest that that agreement be entered isn't the problem here that on august seventh two thousand and nine everybody came to dangerous to get the change doesn't he but i don't think that the proceedings had ever reached that point because case law indicates that the order isn't final and tell the judge science and in this case the judge other than the intrigue of the what was assumed to be read or it's my understanding that it was that it was the order the agreement had to be signed signed what else remain between the parties to be resolved either by litigation or agreement at the time that the agreement was that heard or spread a record everyone was on it was under their honest service i understood the circumstances to be one thing and then in the meantime they realized that things had changed that's you know the answer mcclish were there any issues other than custody visitation they kept this case alive or was to the parties or to get this order signed to what i understand it was the judge said it like hearing date for the presentation of the written order with parties present and in the meantime between august it and the subsequent carry it was in force of the court that there was no longer an agreement and that there was this fundamental change and that agreement and then  you know during the period from august of zero but october and november what changed what changed do things change the representations ms zander had made to the child to me child that was not true she also admitted that she did not feel the need she had to tell anybody this it was none of their business and this is at the time when these issues were pressing i mean this isn't the way you all know the court hearings don't take place in a vacuum there are letters or had told she later said it trial she thinks that document that she signed was all i don't know how it was all she also told the custodial evaluator that that the child had experienced some symptoms some fights the child was around and his corns absolutely correct this was not in you but it was not in the agreement because every time the issue came up whether it was with the evaluator with me on the deposition the response was so there is no ship he's gone  or divorce we're getting worse we couldn't really tell first it was we are divorced and then we were getting worse so the alleged domestic violence was very real wasn't wasn't ok let me ask another question also during the period between august and october november you're suggesting these there was a change in circumstances which both you do as jobs representative and perhaps other council became aware that's correct did you make the clearly were that we did have  this we were trying to to to get an order that everybody could live based on everything we knew the in so any case management conferences as you can imagine the judge would ask what's the hang up well hang ups we have to get language regarding better from the we have to get language warning counseling i don't want to go to counseling because that was a big deal the child accounts of for two reasons he had some serious health conditions that he counseling that were health conditions he had directly affected him as he was an adult entering his adolescent  but also needed counseling for the domestic violence issue to say that the mother had had had participated will willingly in counseling these isn't is a stretch she she says she she did get the child involved in counseling but attended the counseling with them which wouldn't work because the child would probably in counseling have to talk about this violence for front in the year between august of two thousand and nine and the trial of the eleven months counseling was here and everybody agree the child was again part it was for medical reasons everybody agree they should get counseling and for the domestic violence that's what needed to be in agreement until just before that literally just before the trial the mother was parents both come to him and say we're we want this well at this point time you have one parent and the child representative might have to say it's not this isn't it this is this isn't but he had approved the agreement to markets whatever the agreement was he said not binding on the parts and so the father was saying no this isn't this isn't right and i will say this this this agreement that was written up does not and by that time exactly what does not cover the whole the whole situation because one of the and that's why in my brief i talked about fraud the mother had represented to us all along that especially in the summer of two thousand and nine that mr flaherty was gone he's this is a non issue and when that turned out to be not seen and it was not spread of record but it was not spread of record because we just because we documented everybody had been told that he's wrong he is he is gone and i understand that that it seems like a his counsel just hope was that what the proper way to do it is enter the order and file a motion to modify it i do i do think probably procedurally that might have been a more correct way to proceed but we're heading towards the exact same result because if under five o two church and really doesn't have to enter this or he clearly doesn't have to enter in order based on out an agreement between parents who say this is in the best best interest is not and not with not with regard to children five or two i think says isn't th but it does but sander i believe i believe that case the court had entered and order after hearing evidence saying this is this is the ruling of the court and then it was left to the attorneys or one of the attorneys to write that order up but the judge had entered his is findings and orally in court maybe had right after the trial and then left it to someone else that one of the attorneys to write up but by a by january position managers she may be right but when we have a trial last summer on this issue it was entirely mr burke and that's her on a motion to modify it would not have been of a different pleading or set of sort of allegations it's the same allegations that were filed i believe in august of two thousand but the change of custody order within two years of the entry it's a little higher burden isn't it it is a higher burden but i think his his or her addresses that i mean this is just her beliefs order i think addresses sixten factors that there is that the trials the serious and dangerous factors i think that i think i think is order says the mother's historic it's not just that there was domestic violence in her house her denial or her refusal to acknowledge when she was asked if testified in evidence that position days before was accurate that this isn't just that there's domestic violence it's domestic violence if she doesn't let me use your question again i asked specifically about august two thousand  november two thousand and nine was there a motion to modify i'm hearing and you said no and then a few moments ago you made reference to the motion of modified it was filed in august of two thousand and eight and what i want to know is way was it based on the domestic violence issues that was where he had a number of allegations and i thought all along was hard you know i thought certainly a trial was the main allegation with a continuing relationship with mr frosty and that and the child can't have a relationship what everybody is saying is the child can't be around and even dr appleton the child can't be around missy and her and miss a friend tafe or anything other than drop off in pick ups and then the court said was that language about mr francais i added that language and i believe since i added that language the court should have approved of it as it was as he had previously said that it was in the best interest of the child back in august the judge then was saying that the only thing that wasn't now in the best interest was that the child and casey and ben be together as one it was only thing that was holding up that word i made that the father's lawyer child's representative became concerned and it made reference to the fact that they thought either they had been misled or it appeared that in october november there was still the kind of contact between your client and her ex husband by now ex husband that they didn't think was going to occur i counsel was in there with parties she mean everyone nowhere in there it was still going to be and chances life no as she says in her testimony no one said one thing about it about what we have to put language it or we have to do this i mean if you look at your we have a lot of language in there going back and forth counseling but i did not i didn't take what mr cross said to me as a concern about him somehow still being involved with ch there was no testimony that my client was not right but there were some statements in the trial court that your client agreed he was fair in her life somewhere along the line i believe you agreed i believe i'm january eighth i was cut off