She Didn’t Expect Dad Had Video Evidence

Your honor, this is a case that started as a child support action and then was converted into a custody action. There's a four-year-old child uh between the parties at this point. The child has lived the majority of his life up until the these proceedings with the mother. Uh father had limited contact for quite some time, but upon seeking child support, he saw time with his child. Miss Hwitt represented herself for quite some time in these proceedings and importantly there were orders that came down regarding visitation and what that looked like and what that would be. Importantly, the court considered and granted some unsupervised visitation right before Christmas where the father would have uh I believe it was on weekends from 8:00 a.m. to 6:00 p.m. on Saturdays to come see the child at the mother's home. Subsequently, there was a motion filed on January the 21st of this year that was set for hearing on the 29th, a week and a day later, uh that effectively asked for the court to flip the the custodial schedule at that point, uh citing some issues and some things that the the father had concerns regarding. Uh at that time notice uh was mailed to my client but she never physically received that notice. She had been here for every single other hearing that had occurred except for the one where she did not get the notice in time. And with not having the notice and without being here, the court entered the order where the father had the majority of the time with this child and put some ownorous terms on the mother including making her responsible responsible for transportation and some other costs that father knew that she could not afford. uh mother currently does not have reliable transportation and the criminal contempt that we're seeing is related to that in some of the transportation issues that came from this order where mother was not uh noticed and did not know to participate. Uh at this time uh the child has not had much time at all with the mother since that order came down. I believe there were maybe two or three visits uh since January that the mother has had because of this transportation issue. The father lives over two hours away in Kentucky with this and has taken this child and has in no way uh facilitated any of that contact. Uh instead when mother asks and tries to communicate that she has difficulty transporting and you know moving this child uh he shows up with the police and files this criminal contempt. We will say that this child is at substantial risk of harm. That he has been completely severed from his connection with his mother. That he was raised primarily by his mother up until January of this year when this court changed course. And that he is not uh not having the stability in in the uh placement that he needs that he's been removed from the home that he's known. the family that he's known, including his sisters and other siblings, that he has not been getting the the therapy and the uh other resources that he was getting through the Dixon County school system in Kentucky. And that we are seriously concerned about where this is going and what is happening to this child uh with this change in custody. And again, we're we're just seeking to go back to the status quo and then reassess and see what we need to do moving forward because we're not denying and saying that he can never have time with this child. We're just saying that this uh this change I is too much and too fast for this child that does have some developmental delays and does have some other issues. Ultimately, father set mother up for failure unilaterally at that hearing on January the 29th. And now in addition to the motion for criminal contempt, they filed a parent a motion for a parenting plan where if you read their proposed parenting plan, it gives father 365 days with this child and mother zero. They are trying to control the situation and take this child away from the mother. And I I am not disputing that it was mailed or not mailed. We don't know. But what we can say is that mother never received this notice. She was not participating in that hearing. And ultimately, we're seeking this child to be able to return to mother because there have been no substantive issues that have brought about the uh this change in custody. Deal first with the motion to reconsider the uh this case for a for some of the history. This case initiated as was pointed out by a petition to establish a paternity and for support. that that complaint to establish was filed in September of 2024. Um, an order went down in November of 2024 to establish paternity and to establish a child support obligation and from that point and in fact I think I'm the one who signed the order of confirmation of that. Then following that be uh there was a a uh petition to establish visitation that Mr. Fenton had uh filed and that came before the court and we ended up having a hearing and I there was order of of visitation that went down during the hearings both in that and the parenting time of Christmas of 2024. Miss Hwitt appeared prosay and testified about the extensive medical conditions that this child suffered from and how this child had heart issues and other major health issues that she was addressing and that that was her opposition to having overnight visitation with Mr. Fenton that I found that at the December 18th, 2025 2024 hearing, the mother testified that she had objected to unsupervised visitation due to the minor child's various medical conditions and treatments. However, the proof overwhelmingly at that hearing in January established the fact that the mother was either untruthful or illinformed, both of which are unacceptable for a primary parent. The mother also testified that she had been managing and fulfilling the minor child's medical care and developmental needs. However, the proof was overwhelming that the mother had failed to meet the child's needs. Court finds that the mother delayed the child's access to services from Tennessee Early Intervention Services for about a year. Furthermore, the child missed two consecutive months of developmental therapy by April the 12th, 2022 due to the mother's failure to cooperate with the therapist. The mother also delayed the child's access to physical therapy and failed to have the child evaluated by a speech therapist and opthalmologist as prescribed in the child's PCP uh which is care primary care provider Carol Moore. I found that the child requires evaluations and follow-ups for autism, speech opthalmology, as well as a well baby checkup and a two-year follow-up with a cardiologist. I found that the a mother had neglected the medical and developmental needs of a minor child and that the overwhelming evidence demonstrated that the mother was not capable of providing the care the child required. The father had actively sought to arrange for the child to receive necessary medical evaluations and treatments and he has demonstrated both a willingness and ability to meet the child's needs. He testified that the minor child did not experience any issues in his care during his residential time. And I went on to find that I considered the factors in Tennessee code annotated 366106 and I found it was in the best interest of the minor child to designate the father Matthew Christopher Fenton as the temporary residential primary parent. And I went forward then to set a residential schedule for the mother. That is the order that I entered. That is the order that in my opinion should be upheld. And I am of the at least I'm not going to grant the motion to reconsider because in my opinion proper notice was given and uh the there was a factual basis for the rulings that I made at that time. I will then uh overrule the motion to reconsider and move on to the motions for contempt. Actually take him with me. Okay. So the first 90 days you were to have supervised visitation at Miss Uit's home. Is that what you stated? Yes. And it it And what time from what time was it? Uh from 12 to 9. 12 to 9. So you had a hearing August 30 of 2024. So when was your first supposed visitation? The following day. It would have been August 31st. August 31st of 2024. Is that correct? Yes, ma'am. Correct. And let me go back. During the hearing of August 30, 2024, Miss Uh was she present at that hearing? Yes. all the way to when it when the judge uh made his ruling on your specific visitation. Uh yes, that's correct. All right. And then so the first day that you visited August 31, 2024, were you able to see your son that day? Um yes. Um for a short period of time, about an hour and 20 minutes, and Miss Huitt had told me to leave, that I would not be coming around there every other weekend. And so I left. Okay. And so your time was cut short. Uh so if you had from 12 to 900 p.m. So that would be 8 hours, correct? Yeah. Well, no, nine. Eight nine hours. Oh, I'm not good with math. I think it's 8 hours. And so then you it So did you say that you um you only visited about an hour and a half that day? Uh yes, it was about an hour and 20 minutes or an hour and a half. Okay. I was asleep. Did you perceive any reason why you shouldn't be allowed to uh complete your 8 hours of visitation? No, she just got very rude and told me exactly that, that I needed to leave, that I would not be coming around there every other weekend. Okay. And so that happened August 31st or every weekend, I'm sorry. Okay. All right. So then let me take you to September the 28, 2024. Tell me what happened on that day. Um see uh August 31st date again. I'm sorry. Was that September 28, 2024? Did you send her uh did you let her know that you were going to arrive? Yeah, I let her know I was going to arrive and she had messaged me and said that it was her stepmother Conniey's birthday and um that she was be going to her father's for that and wanted me to reschedule my visitation for the following weekend and I messaged her back and I let her know that, you know, I'd been waiting all week to see Ashton and I did not want to miss my visitation and she brought up child support and had seen it yet. And um I just let her know that I was be on the way. And she messaged me back and said that she would call her father if I sent a child support and see if he could come later in the day to get him and postpone the party till later that evening. And I told her that would be okay. And then she messaged me again about child support. And I I didn't respond. I just let her know that I was heading that direction. And right before I got there, she had sent me a message that she had left. Or maybe when I got there, I can't really, it's been so long ago, I might have pulled up. I think it was 12:04. I pulled up and I I uh messaged and said, "I'm here. Are you at your house?" And she messaged back and said that she had already went to her father's house and they would not be back until later that day. I think it was 8:00. And that I couldn't have visitation. And so on that day, September the 28, 2024, was that a Saturday? I I believe so. So that was an appointed day for you to have your visitation. Is that right? Yes, ma'am. And you did not have the visitation. That's correct. Correct. Participants in that text messaging. Uh me and Miss Huitt. Okay. And you did say October 26 is a the date on that text message. Yes. It's a Saturday, October 26 at 12:14. Okay. Is that another day where is it is it your appointed day to exercise your residential time? Okay. And so read that text message for us. Um she said I I text her and I said I'm at your house for visitation with Ashton. Are you at home? She said no. We're at daddy's for his birthday this time. Um and then I replied today is visitation. So, are you coming back? She replied, "Well, you change up uh Saturday and Sunday whenever you want, and I text you about his birthday and got no response." That was completely false. She had never texted. Just go ahead and um and then I've replied, "You must have text the wrong number. I've alternated every other week like the judge ordered." And then um and then it said we went to I I replied to this. I said we went to court on 8:30 2024. Um visitation started the next day which was Saturday. Then she replied, "Conniey's cooking and got him a big cake." Is that the end of it? Well, no. It keeps going. I just got to flip a page. Uh it didn't show it off, but uh she had replied, "Conniey's cooking and got him a big cake for Papa and giving gifts." Um and she said, "I'm sorry, but I text you and you were at Daddy's for his birthday." That text you that we were at daddy's for birthday. And then I said, "Um I replied, uh that's no excuse. It's contempt of court." She replied, "No, it's not. we had a prior engagement and I text you. And she replied again, we have had um have had lives over three years without you and still do. Stuff comes up, that's life. And then I replied, I'll file contempt to court on Monday and see what the judge thinks about it. And she said, okay. And then she sent me a thumbs up. Okay. So, judge, I will play. Is it an audio recording? A video recording video. So, do you recognize that? Uh, yes, ma'am. And was where where is that taken? That is at Amy's house, right? Who was taking that? Um, I was because I pulled up and I got I'm just asking who was take who took that? Oh, I I took the video. Don't explain. And then So, um, what time of the day did you take that? Was it at the beginning of your visitation? Yeah. At the beginning of 12:00 as soon as I pulled up. Yes. Okay. Right at 12:00 that runs her mouth about my goddamn daughter and No. [Music] Give me my baby now. I'm here for my visitation. Yeah. Your brother. He's all right. No, he's not. Give me my son. All right. So, I need to just leave them. Is that what you're telling? You don't want it to have visitation like you're supposed to have visitation in your house. Right in front of it. That's not my house. This is your house right here. That's not your truck. My truck is in front of your house. That is not my house. All right, we'll take that. Explain what what was happening in that in that situation there. I pulled up. I knocked on the door for visitation at 12:00. U Miss Huitt was in the back room. When you walk in her house, you go to the living room and then there's a hallway and she was in the very back room in her bedroom. Um I'm assuming cuz she had walked out that way. Um but um her daughter had answered the door. Uh Sophie Ashton's sister. And we always, it was a nice day, we always went outside to play in the yard or I would take him to the park that's just walking distance down the road. Um, I'd been teaching him to climb those stairs because he has physical developmental delays is what they called it at that time. But he was just kind of learning to walk at 3 years old. His feet turned in really bad. He didn't have a lot of muscle strength. So every time I would teach him to climb those stairs, there's 10 all the way to the top. We'd count as we go up. And then he really enjoyed getting in my truck and he would play with the buttons and he liked the horn and and so that was a normal routine when I got him. He'd be waiting at the door grabbing his shoes ready for me to put him on and take put them on and take him outside. and Miss U had just come out of the back room and by the time I made it to the top of the steps, made it to the truck door and I opened it, she came out iate and she had said a few things before and I just grabbed my phone and started recording at that time. Is it true that you exercise your visitation in your truck? Uh, I mean it was never a problem for him to go, but no, I did not exercise the visitation in my truck. Typically, it was in her house, especially if it was a rainy day or if it was sunshine, uh we would go outside to play. Um there's not a whole lot of area to play there, but about 500 ft down the road there is a little park area and um most of the time it would be me and Sophie would take him down to the park. Okay. Or usually I might have been there at that time as well, my fiance. And um and who was she who was she directing to grab her child? That was Sophia that was up there ran past. I was holding Ashley in my arms. And then who who uh grabbed uh or who took Ashton from your arms? Um Miss Huitt came up and took him out of my arms. Okay. And so after that encounter, were you able to have visitation that day? No. So you just left? Yes, ma'am. I just have a few questions about some of these incidents that you mentioned and some of the things that happened. Uh you mentioned this uh alleged incident that happened on August 31st where you showed up, you saw your child for a short time and then Miss You had told you to leave. Is that right? Yes. But you don't have any proof of that beyond your testimony here today, do you? No, sir. And you were allowed to see this child and you did see that child on that day for an hour and 20 minutes. That's correct. And on September the 28th, we we see the messages and the the back and forth. She had messaged you previously to try to reschedule that. You just didn't reply to her. Isn't that correct? Uh, no, that's not correct. I did reply. Okay. Uh, but she had discussed rescheduling that date with you and you just weren't having um I had to leave out of town the next day so I could not reschedu for job my job. But that visit you were later able to make that up and have that time with your son. Uh, no sir. Your testimony here today is that you never were able to make up the September 29th visit. Um, she never offered you other time outside of what you were court ordered to let you make up that time. Yes, she wanted me to come the following weekend, but like you stated earlier, it's 2 to 2 and 1/2 hours from my house. So, you're talking a 5 hour round trip. I work. So, she offered you an alternative and you said no. Yeah. And as a matter of fact, on that September 28th after that party, you were able to see your son for a little bit that day. No, that's not correct. Not correct. Okay. She she did not show back. She told me she wasn't coming back until like 8:00 at night and it's not possible have to get up for work. October 26 or or sorry before I I stop the or move on you don't have any other proof you don't have any other videos or anything else any recordings of this time uh on the 28th um you don't have them here today no I don't have them submitted as evidence that's correct let's move on to October 26th again there were messages between the two of you and she attempted to reschedule that and you didn't text her back. Um, she never text me period. It it states that in the messages that I never received any message from you. So your testimony is that you never received any message at all regarding trying to reschedule or trying to have uh just a different date on the calendar. I never received anything from Miss Huitt on that date trying to reschedu. That's correct. And it was also you were also able to make up that visit and have time with the child later after that, weren't you? No, that's not correct. Let's move to this visit that occurred on November the 3rd. We we saw the video. You were still under supervision at that time with your son, weren't you? Uh, yes. Okay. And your testimony was that you took this child out of the home. that we to your truck. Yeah, we had always we climbed the stairs up without telling the mom. Um, she never, Miss Huitt never really engaged. She was always in her bedroom in her bed every visit. So on this November the 3rd visit, you take this child that's supposed to be supervised during this visitation out of her home and you place him in your car and that's when this altercation occurred. No, I just walked we walked up the steps. I walked to my truck to grab a water or something out. He was not placed in the car. She had walked out as soon as I made it to the truck. Sophie, his sister, was directly beside us. Is she an adequate person to supervise these visits? Um, she was the only one that was there for most of the visits. Like I said, Miss Huitt was always in her bed in the back bedroom and And after that that exchange where where she was saying, you know, give me my child back. You you voluntarily left, did you? Yes. She was showing animosity and hostile. That's not good for my child to see that. I don't think I think it was best to defuse the situation at that point. He didn't deny you any time. You voluntarily left. Is that a yes or a no? Yes. Okay. But when she asked me if I need to leave or I asked her if she needed to leave, she told me yes. So, it's her home. You never provided any text messages for that September the 28th when your lawyer asked you and you testified that you had offered for him to stay and things of that nature. Do you have any text messages to show that? To show what? You testified that you you um me send sent him some text messages. Thank you. I mean, we sent a lot of text messages, so But you didn't bring those here today, did you? I mean, I've got him printed out and on my phone, but I've never kept him from him on that um October the 26. And that was um incident with regards to my dad's birthday. Okay. That was your dad's birthday. Isn't it true that you texted him that it was that you were going to the your dad's birthday celebration on that day? I let him know that it was his birthday and if we could reschedu, but he didn't want to. And so I Judge, this is nonresponsive. I would object. I'm just asking. Did you send that message that we have an objection? She's objecting. Non-responsive is not an objection to her own question. Non-responsive is saying that her answer is not responsive to the question. Overru. So, Miss Yub, but let me rephrase. Restate your question. Re restate the question. All I'm asking is on October the 26th, which you are saying it was your father's birthday, isn't it true that you sent the text message about the celebration on that day, that same day? Yeah, I let him know it's my dad's birthday. Okay. So, you did not give him prior notice. Not the day before, not the week before. It was on that day when you told him, "Hey, by the way, you can't visit with Ashton because I'm going to my dad's birthday." Correct. I don't know if it was the day before or not, but bottom line is he saw his child that day. Okay. And that's your testimony that he did see. Okay. All right. Let's talk about the video recording that we played. Is it your testimony that Mr. Phantom is teaching Ashton to go up the road by himself? I'm not saying he's intentionally that was his motive, but that's what was happening because he was sitting out in the truck in the road. And so every day he started going running up the steps and just trying to go straight out the road after because most of his visits he would be basically in his truck. Okay. When he when he would do that, would Matthew be there um engaging with him? He would run up to the stairs to see his father. Is that right? He was around the truck on the sidewalk and in the road. So the father will be there when they're outside. I mean his girlfriend was in the truck and he would be around walking doing things and that's why I was watching. I was paying attention cars going by and that's why I got so I'm like it needs to be in the house or in the yard not in the road. And how long has this been going on before November the 3rd? I mean, it was going off. I mentioned it probably the last few visits, but Okay. Um, this COVID situation, you testified that you told him for that November 9 visit, and you may have been confused here. November 9 visit, you testified that you told him Ashton had COVID. But isn't it true that the COVID positive test was November the 21st, correct? Cuz I have your text message here, too. Okay. You agree with that? I mean, I agree. He got COVID then, but he he also tested positive for COVID before that. So, the November the 9th the COVID was not the reason. The reason was that you told Matthew that there was an alcohology appointment. Let me finish my question. November the 9th, he had his visit and then it was cut short because you said there was a 2:30 opthalmology appointment. Correct? Yeah. And he responded with that. Okay. Your lawyer asked you about November the 9th and your answer was I told him that Ashton had COVID. So that was not true. Well, I mixed up the dates. It's in the text messages. Fair enough. Okay. But there was a COVID positive test. It was just not November the 9th. Can we agree on that? It was November the 21st. Correct. Um I guess. Okay. The uh court has considered the testimony regarding the initial motion for contempt in count while do with each one of the counts. In count one, there's a testimony that uh he his parenting time was supposed to begin at 12:00 and he was supposed to under that original court order was to be given I think it was 12 to noon or to I think it was 1 to 9 maybe 12 to 9 p.m. 12 to 9. And uh so that's a period of 9 hours that he was supposed to have visitation with the child. That um couple of hours or four to five hours is not the same as 9 hours. But in any event um it appears that that was during an an adjustment period when they were beginning to try to uh set up the visitation and begin the visitation. And most of those instances, this court is um of the opinion that those explanations that were given don't rise to the level of willful contempt because of the fact that there was some visitation that may have been cut short or he may have agreed to not the cutting short of the of the supervised visitation on the day when he had the child up on the sidewalk. uh and she came out her response is indicative of her attitude towards the visitation entirely and that is also reflected in what I'll deal with in the next set of of motion for contempt. But as to um the original initial motion for contempt, I do not find that proof rises to the level of willful and deliberate contempt, criminal contempt, and therefore I found her not guilty of those charges. On the second motion for contempt, there's really only two instances. And in those instances, she was supposed to be complying with the order of this court regarding the change of visitation and the and the schedule of of conduct. It's interesting that the fact that she was able to obtain transport to pick the child up, but suddenly then transport fell through. Frankly, this court does not find Miss Hwitt to be a credible witness. um based upon not only today's testimony but also my observation of her demeanor in today's testimony, my observation of her at prior hearings in this court and my belief that there was misrepresentation at the very least to this court at prior hearings regarding the medical condition of this child which has been later proven by satisfactory to the court satisfaction by evidence at a prior hearing when I changed the custody of the child. So, when I read these text messages, for example, on the count one, which is the February 7th date, when she picked the child up and then wasn't going to return the child, um, and he indicated he'd be there to pick him up later this evening. And, uh, then she well, she said she'd be there later to pick him uh, be up there later this evening. He'd be ready at 6:00. And then on the 9th when he was supposed to be ready to go home to his dad's, her statement was is that her car couldn't make it. Connie just let me know she couldn't take us and so forth. And then she said, "I don't have any way to get there." He said, "I'll come and get him. I'm on my way because he had a cardiologist appointment." Again, that's one of those factors that uh the court used in determining that this child was better off with the father than with the mother was that the child's medical needs were not being made met and it was not being given the importance that this court found cardiologist appointment for a child of this age is extremely important and heaven and earth should have been moved and Mr. Fenton moved heaven and earth to come and get the child. Her response, as Miss Hendrickson pointed out, is uh instructive. Her response was when he said, "Like I said, I'm on my way. You understand I'm the one that gave child support your name and cooperated and wish I never did because you're going too far with my child and you don't know. Plus, my child you don't know. Plus, you lied saying you'd never try to take him. And look, I never get an I I never got notice of a damn court here date. and you think you're keeping my child? I find her guilty of willful and deliberate contempt in regard to the denial of of return of that child on that occasion. Failure to comply with the court's order. And anyway, um I'm of the opinion that that again represents an intentional and willful deliberate violation of the court order, failure to bring the child back. And for that reason, I find her as well in that instance, two counts of failure to comply with a court order and uh find that she is in willful deliberate contempt to sentence her in each of those cases to 10 days in the county jail. I will suspend that uh based on the fact that it is her first occasion to have violated the court's order. But I want to make it clear one thing, and that is is that I will not hesitate to lift that suspension and have you serve those 20 days in jail consecutively, which I'm allowed to do under an order for violation of a domestic relations order. I can make that 10 days in each of those counts consecutive to one another. And I will do that. If you try to play games with this court's orders, or if you do anything that indicates to me that you are violating a court order, your attitude towards Mr. Fenton is going to be reflected in your child if you are not careful.