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children lived with Mr. Lautenberger on any particular day of the
week. It is also not clear whether the numerical notations were
contemporaneously made. The vast majority of the entries in the
diaries were written in ink, but the numerical notations
indicating how many children lived with Mr. Lautenberger each
week were written in pencil. Mr. Lautenberger admitted that he
had no independent memory of where Diana was during each day of
1998. He also explained that the notations in his diary
regularly were used as a planning tool so that he could mark in
advance the children that probably would be with him for a month
and schedule his time accordingly.
Ms. Rogers does not dispute that Diana went on a vacation
with Mr. Lautenberger during a week that Diana otherwise would
have spent with her. She argues, however, that it is simply
impossible to ascertain which of the two of them had physical
custody of Diana for the greater portion of the year.
Although Diana regularly alternated between petitioners on a
weekly basis during 1998, the parties did not rigidly enforce
compliance with the custody order. Mr. Lautenberger testified
that “We have an agreement for a week on and a week off, so we
can say that most weeks generally are going back and forth.” Ms.
Rogers testified that Diana generally spent one week at a time
with each petitioner, but that exceptions were made. Ms. Rogers
stated:
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Last modified: May 25, 2011