Your thoughts???

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Your thoughts???

Unread postby David » Mon Jan 10, 2005 9:17 am

OK board....I'm going after modification of current custody for the following. Do you think I'll have a good case because the first order/divorce was done in June? My son is 10 and goes two night during the week with his mother and with all the following, I need to do something ...

1) Ex's boyfriend who broke up with her confirmed drug usage
2) Ex had $15K from settlement and has since lost her apartment, job, vehicle after spending the money on whatever but not for necessities.
3) My son has been sleeping in other people's beds.
4) School work has suffered
5) Ex hasn't kept to the original schedule on a consistent basis.
6) Ex has borrowed money since the settlement to help pay for things
7) Borrows other people's vehicles.

My son doesn't have a problem going with her because he has no boundaries and she lets him do whatever he wants.

Anyone gone after modification and did you have to have a lot to prove to make changes? Appreciate the input.
David
 

Re: Your thoughts???

Unread postby Pete » Mon Jan 10, 2005 9:31 am

The only thing above that would relevant for custody modification purposes is the "significant change in circumstance" of losing her apartment.

Also, if her ex boyrfriend confirms drug usage, it will only matter if the drug usage placed the child in physical danger. You would need to request drug testing to confirm she is still using.(as part of the order)

Borrowing money, vehicles, etc does not affect custody. Lack of financial responsibility will only be a small factor, as it relates to stability of mother.

Schedule changes that reduce HER Time are not going to be valid complaints. Schedule changes that reduce your time would be contempt.

Burden of proof will be on YOU entirely if you bring the motion. Hopefully you have kept a journal of all of what you said and can prove the drug use
Pete
 

Re: Your thoughts???

Unread postby nuke » Mon Jan 10, 2005 9:32 am

It largely depends on the judge. Some are more picky than others. Your biggest obstacle will be the short duration of time since the original order. But if you can substantiate what you have said with irrefutable evidence, I can't imagine a judge refusing a substantial change in circumstances. However, what is it you hope to accomplish? You need to figure out where you are going with this, before you dive in headfirst. So you can collect the appropriate evidence before she is on guard and put it in the context of what you are asking for.
nuke
 

Re: Your thoughts???

Unread postby David » Mon Jan 10, 2005 9:53 am

I hope to accomplish a stable environment for my son. His mother is whacked! Financially, she can't take care of herself let alone my son. She has a history which I have posted about on issues such as prescription drug abuse. The man friend she is currently living with also has a history of drug usage. She was fired from her job. My son has been in counseling and on meds because of the turmoil. I'm not restricting him from seeing his mother or talking to her but the more time he spends with her, the more warped like her, he may become. Recently, she was hysterical and crying and claiming her mother was taken to the hospital for falling down and I later discovered her mother was home and just fine. She cries wolf for sympathy and her emotional stability is wracking havoc in my household. She boo-hoos in front of my son because he is the only one who will listen to her and then drops him off with me, leaves and I'm the one who has to calm my son so that he knows his grandmother is okay. I hope to accomplish a decent judge that will look out for the best interest of my son and not let him be exposed to her instability.

Would you let things continue to go on like this knowing she is only getting herself deeper into things??
David
 

Re: Your thoughts???

Unread postby nuke » Mon Jan 10, 2005 10:01 am

When I said that you need to answer "what do you want to accomplish?" I meant very specifically.

Do you want no overnight < parenting time > ever? just no overnights on school nights? Fewer overnight visits? Or leave it alone?

Do you want supervised < parenting time > until she can demonstrate she is clean?

These are the kind of things (as well as who will pay for the drug tests, evaluations etc.) that you need to decide and start planning your actions and collecting evidence for.

What you CANNOT do is walk into court and show she is a terrible mother and expect the judge to divine what is the best course of action. It is simply not how family court works.

Be aware that any remedy put into place will likely be temporary and you will have to fight like h*11 to keep them in place until she gets her act together. The courts will CONSTANTLY look for even the smallest reason to give her back her "rights" before they worry about your kid. There is a poster here "kahuna" who can tell you ALL about it.
nuke
 

Re: Your thoughts???

Unread postby CoDad » Mon Jan 10, 2005 10:07 am

David,

Nuke is giving you good advice.
CoDad
 

Re: Your thoughts???

Unread postby kahuna » Mon Jan 10, 2005 10:32 am

"All family court will do is allow you to protect your kids physically. You won't be allowed to protect them emotionally from her."

Those words were uttered by the psychologist who did psychological evaluations for my stbx and I. She was diagnosed as antisocial, narcissistic, delusional, and a prescription drug addict. I had 10 years of irrefutable evidence of her drug use, including her taking drugs during her pregnancy.

In other words, your ex will be allowed to emotionally torture your kids until they are 18, or until they finally get so sick of her that they refuse to talk to her. The courts will do nothing. You had better find out first whether there is a legal time limit in your state that you must wait until you can change custody. Also, the only things that will matter in your case are the events which have happened SINCE your last hearing. I don't think her losing her apartment and the kids doing poorly in school is enough, to be honest.

Her financial irresponsibility means nothing to them. It may give them a reason to order you to pay more support.
kahuna
 

Re: Your thoughts???

Unread postby David » Mon Jan 10, 2005 11:00 am

Good input and I appreciate it.

I already have primary physical and I plan to modify the court order to get the other two nights and only allow her every other weekend provided she can show proof of being clean and can provide a stable place for my son. I don't pay child support and neither does she. I've paid for the counseling, doctor visit, prescriptions, clothes, etc.

Evaluators and mediation all took place but she caved in and agreed to what we currently have because she didn't want to go through having me trash her in court and embarrass her to her son.

After talking to my attorney and giving him all the information this morning, he believes I have a good case. He is good with the courts and he said he would call me if there might be any problems. I'm hoping the Ex will use this as an opportunity to get her act together so she can see what effect this is having on our son. I want my son to have a relationship with his mother but not like the way things are going. She went through the extreme of shaving her head for pete's sake to claim she had cancer!
David
 

Re: Your thoughts???

Unread postby Kia » Mon Jan 10, 2005 11:07 am

It is a crazy system when the dad has to wait until something bad happens their child before the courts will do a darn thing! Even if the dad is bringing all the "signs" to the attention of the court! I would say start documneting everything because the court loves solid proof! If your son comes home dirty or with bruises(god I hope not) take a picture and document. Foeget the money things,like she spends it thois way or that way and forget the BF(unless he is a registered sex offender) Focus on her ability to provide proper shelter and food for him.Also on her boundry issue with him. You DON"T want to probe him though every time he gets back from her "house" If it is as bad as you say,I have a feeling he will start the conversation with you. Good Luck.I hope you get him all the way out if it is a bad environment. Best of Luck
Kia
 

Re: Your thoughts???

Unread postby Lawmoe » Mon Jan 10, 2005 11:11 am

Changes in custody are based on the totality of the circumstances. Also each state has a different standard. Knowing what standars is applied is important to your case. In some states, like Minnesota, in order to change custody, you must show the child is endangered in the current environment. That is a very high standard.

In many other states, there is a very high standard to change custody in tthe short period after a custody order is entered. For example,in Wisconsin, the standard is endanderment withing the two years after a custody order is entered. After that it is reduced to a best interests of the child standard.

In some states, you must only demonstrate that it it is the best interests of the child for custody to change. There is a presumption for retaining the current custodial order and you must show with strong evidence that the benefit in a change in custody outweighs any harm.

Knowing the standard is very important. Based on what you have posted alone, without reading into it, your case is not particularly strong.
With regard to the facts you do have, I respond as follows:


1) Ex's boyfriend who broke up with her confirmed drug usage

This is, first of all, hearsay and inadmissible. Second, youmake no indication that it affected the children in any way. As a result, it is not very helpful and will likely be denied by ex.


2) Ex had $15K from settlement and has since lost her apartment, job, vehicle after spending the money on whatever but not for necessities.

This again makes little difference . Poor people raise children all the time and they are just fine. You must indicate that this is having a negative impact on your child.

3) My son has been sleeping in other people's beds.

Is there a negative impact. Sleeping in other people's beds is not particularly significant without more. Instability and its impact on schooling would be a better way to frame the issue.

4) School work has suffered

This is your best piece of evidence,. It is independent. It is verifiable and unrefutable. As a result, it is an important piece of evidence. However, you must tie it to the prior allegations of conduct to have a cause and effect. You must also indicate how that would change if the child was in your care.

5) Ex hasn't kept to the original schedule on a consistent basis.

That will have little impact and is a separate issue altogether.

6) Ex has borrowed money since the settlement to help pay for things

Irrelevant.

7) Borrows other people's vehicles.

Irrelevant
Lawmoe
 

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