Wife comitted adultery and our child was in the same room.

[AquarianDaddy]

I came home early from work one morning last week and found my wife in bed with another man (a past friend of mine). Our 4 year old son was also in the same room they were in. I took off with our son, and sought advice from a lawyer that very same day. My filing went to court the following Monday and I was granted temporary custody of our child based on her being charged with: gross neglect of duty, extreme emotional cruelty and adultery. My affidavit also detailed how I came home and unexpectedly discovered her in bed with this man with our child in the same room. Also detailed was how she was rarely home in the evenings (we both worked day shift and my parents have always been the ones to watch our son while we worked).
Her reason for being gone every evening after work was that she was working for some of her friends doing office cleaning for extra money. And the times that she wasn't working she was 'visiting her parents' whom have never wanted anything to do with our son. I was alwways left to care for him while she was gone. I have no reason to believe that this was her only reason for being gone every day after working her main job. She supposedly received pay under the table and had no check stubs or any other proof of income from her said 'extra cleaning job'. I have had been suspecting she was having an affair with this man for some time but I was always accused of accusing her of it whenever I mentioned it. Sometimes she would take our son out to see this man and his family and when I asked him what mommy and *** was doing he would reply: Telling secrets and loving on each other. I probably shouldn't have pried him in anyway but I knew of no other way to get any info on what she really did over there.

After catching her in the act, she swears that this was the first time she had done anything but I dare not believe that. I think she is gaslighting because she has no other way out of it...she was caught red-handed and had no dark place to hide this. Her other excuse was: 'you accused me of it for so long that I felt if I'm going to be accused I might as well do it'. There is simply no logic to this at all. I asked her: 'If I accused you of beating the $^&^ out of our son would you do it?' She replied: No.

Now, my question is, what chances do I have in getting permanent residential custody of our child? This is all being filed in Ohio. I am sure she will fight this but not so sure on how she will be able to afford a lawyer so do not know what kind of defense she will have...I truly hope she doesn't. I know she will bring up how abusive I may have seemed in the past. I'll admit, we had our share of fights but not all were completely my blame. I have also reformed and we have not physically fought in well over a year. Also she has not once pressed charges on me for anything. And not once have I left any marks on her at all. Not sure how the court will handle this as she has no legal proof of anything in that manner. She was just as guilty as I as far as that goes.

Any advice would be greatly appreciated!

[mistoffolees]

A lot depends on local custom. You will want to ask those questions of your lawyer.

One thing to keep in mind is that what matters in court is what you can prove. If there are no charges, she's going to have a hard time proving abuse without witnesses. Similarly, you're going to have a hard time proving that you had an affair if she denies it - it's your word against hers. Presumably, she might bring the guy in and if they both deny it, you lose that argument.

If it's legal in your state, you might consider taping your phone conversations and keeping your emails. If she admits that she had an affair in front of the child, it would be much better for your case.

Again, I'm not an attorney, so this is not legal advice (ask your attorney), but the best thing MIGHT be a custody evaluation. It's usually less expensive than a court battle, and they can talk to the child where a judge is unlikely to accept testimony from a 4 year old. However, this is risky, too - there are some very bad custody evaluators out there. Make sure you and your attorney select a good one if you go that route.

Finally, make sure you talk with your attorney about protecting your assets. Also, he/she will have advice on what you should do in the meantime. For example, in my case, my attorney indicated that I should give my ex a certain amount of money every month for living expenses. That won't always be the case, so ask your attorney what you need to do while waiting for trial. In particular, this sounds like a case where there'd be a risk of flight. Ask what you have to do to allow her to visit the child without the risk of her running away.

All of that being said, the fact that you got temporary custody is a big positive for you. Once the child is in a routine, the courts don't like to change it as long as the child is doing well. Make sure the child is getting all the attention he needs and is well taken care of. Don't do anything stupid. You're in a strong position, so don't mess it up by being foolish.

[AquarianDaddy]

Thanks for the response.  I think it is going to be rather difficult for her to deny it as my father was the one that brought me home.  As soon as we pulled up to the house we both noticed this man's truck.  I walked in and saw the act and came straight back to the front door and told him what was going on.  Even though he didn't directly witness this, there is definitely no way my wife will try to deny anything.  Also my son woke up during the commotion and saw that this man was in bed with my wife.  

[mistoffolees]

Just be careful.

As for your son, he will not be able to testify in most courts, so what he saw is irrelevant. As for your father, if he didn't witness anything, your stbx and the other man could say he was simply there delivering a package or something. Your father can testify that the guy was there, but you're not going to be able to prove adultery on the basis of his testimony.

I don't think any of that changes my mind about the advice I gave earlier.

[AquarianDaddy]

No, I'm sure they won't let him testify.  That's why I plan to have my lawyer ask the court to have him seen by a child counselor.  He has told me that he has seen his mother and this man 'love on each other' and 'tell secrets' before.  So hopefully, this will also be a big push in my direction.  

[mistoffolees]

>No, I'm sure they won't let him testify.  That's why I plan
>to have my lawyer ask the court to have him seen by a child
>counselor.  He has told me that he has seen his mother and
>this man 'love on each other' and 'tell secrets' before.  So
>hopefully, this will also be a big push in my direction.  

You might talk with your attorney about requesting a full blown custody evaluation. I'm not sure, but I believe the judge can pretty much ignore what a child counselor tells him, but if he orders a custody evaluation, he's almost always going to follow the recommendation of the evaluator. Talk with your attorney about it.

[Davy]

>You might talk with your attorney about requesting a full blown >custody evaluation. I'm not sure, but I believe the judge can pretty >much ignore what a child counselor tells him, but if he orders a >custody evaluation, he's almost always going to follow the >recommendation of the evaluator. Talk with your attorney about it.

What Mist is saying in so many words (although he constantly denies it) is that the SYSTEM IS BROKEN AND in FAVOR OF FEMALES and that you need to send big bucks to the  Divorce/Custody industry in order to protect the child.  

On the other hand, if things were reversed, poor wittle mommy would not have to spend a dime and you would be out on your a$$ and probably never see your child again without spending really big big big bucks.

Me thinks a child counselor would be considered a legitimate witness along with yourself and your dad especially in consideration of all the  Bimbo's behaviors.  This court must also think so since you have already been granted temporary custody so be sure to continue to focus on the well-being of the child.  

Personally, I would demand for Bimbo only be allowed supervised visitation and that Bozzo be restrained from being in the child's presence.  And further, in a separate civil suit, you may be able to own that truck that was parked in your driveway.

Be encouraged.  You have gained in short order much better than many father's in similar situations.  At the same time be cautious.  The judge or attorney may also turn out to be a bozzo or bimbo.  

[mistoffolees]

>What Mist is saying in so many words (although he constantly
>denies it) is that the SYSTEM IS BROKEN AND in FAVOR OF
>FEMALES and that you need to send big bucks to the
>Divorce/Custody industry in order to protect the child.  

I wish you'd stop putting words into my mouth. I said no such thing.

I said that the system is set up with checks and balances. It is unlikely to accept the word of one partner over the other without proof. Personally, I like it that way - my ex is a blatant liar.

How in the world did you get from my statement ("the system won't accept just your word - you need proof") to "the system is broken and in favor of females"?


>
>On the other hand, if things were reversed, poor wittle mommy
>would not have to spend a dime and you would be out on your
>a$$ and probably never see your child again without spending
>really big big big bucks.

Speculate all you wish. In my case, my ex tried to accuse me of all sorts of things and she was told that she needed proof. The court didn't accept her unsubstantiated statements, either. It had nothing to do with gender.

>
>Me thinks a child counselor would be considered a legitimate
>witness along with yourself and your dad especially in
>consideration of all the  Bimbo's behaviors.  This court must

Sorry, the child counselor can not testify as to what occurred. Nor can the father testify as to what occurred since he didn't see it.

The child counselor can testify as to what the child told him - which is a very different situation.

>also think so since you have already been granted temporary
>custody so be sure to continue to focus on the well-being of
>the child.  
>
>Personally, I would demand for Bimbo only be allowed
>supervised visitation and that Bozzo be restrained from being
>in the child's presence.  And further, in a separate civil
>suit, you may be able to own that truck that was parked in
>your driveway.

On what grounds?  What would justify the court awarding that type of damages on the basis of an affair?

[AquarianDaddy]

ok, so this is where my problem will be.  Should she deny it (which I doubt she will), I have no proof at all.  Too bad I didnt think to run down to the store, grab a camera, then come back and hope they would still be at it.  I did however, grab an attourney just a few hours after the incident and get my affidavit on file.  This happened on a Friday and had to wait till Monday before it was seen by the court.  I was granted the order for temporary custody just 1.5 hours before my stbx had self-filed her own demand for temp. custody.  My affidavit detailed the situation and the order stated I had good reason to be given temp custody.
   As for proof, I have basically nothing to show in court as she doesn't email me and hasnt written anything to me that would suggest this happened.  So much for documenting things.  
  Anyway, thanks for the information everyone.  Much appreciated.

[AquarianDaddy]

On a side note, I have a cousin who is very close to both of us and has tried to remain neutral in this whole situation.  My stbx called her that same day and confided in her as to what she has done.  I can definitely get her to testify as well should it come to it.  But again, she has no visual proof either.  Just word of mouth.  ><

And as for my stbx, I know her well enough to assume that she won't deny any of it.  She's pretty honest when it comes to being under oath in court (and yes, she has been to court several times for other minor things ((unrelated)).

[Davy]

>> In my case, my ex tried to accuse me of all sorts of
>> things and she was told that she needed proof.
>> The court didn't accept her unsubstantiated
>> statements, either. It had nothing to do with gender.

The only way I could see that happening is if you and your ex-wife were both of the female gender.

[mistoffolees]

>>> In my case, my ex tried to accuse me of all sorts of
>>> things and she was told that she needed proof.
>>> The court didn't accept her unsubstantiated
>>> statements, either. It had nothing to do with gender.
>
>The only way I could see that happening is if you and your
>ex-wife were both of the female gender.
>

Would you please stop the stupid personal attacks? You don't have any idea what my situation is and you can't even get my gender right - even after repeatedly being corrected.

Your incessant personal attacks make it impossible for anyone to take you seriously.

[mistoffolees]

>On a side note, I have a cousin who is very close to both of
>us and has tried to remain neutral in this whole situation.
>My stbx called her that same day and confided in her as to
>what she has done.  I can definitely get her to testify as
>well should it come to it.  But again, she has no visual proof
>either.  Just word of mouth.  ><
>
>And as for my stbx, I know her well enough to assume that she
>won't deny any of it.  She's pretty honest when it comes to
>being under oath in court (and yes, she has been to court
>several times for other minor things ((unrelated)).


Your cousin will be able to testify. Your ex's statements to the cousin amount to hearsay. Hearsay is generally not admissible, HOWEVER, there are something like 7 exceptions to the hearsay rule and one of them is that someone can testify as to what they were told by one of the parties to the lawsuit. Therefor, those statements would be admissible.

I don't mean to imply that you can't win. As I said, you are in a very strong situation since you have temporary custody. I'm just trying to warn you against being overly confident since rules of evidence are limiting.  If your ex admits what happened, you'll be in even better shape.

Also check with your attorney about the legality of taping phone conversations. If it's allowed in your state, maybe you can get her to admit something on tape.

You have a strong position - good luck.

[AquarianDaddy]

please, could we all get along?  I didnt post this to watch board members start attacking one another, I posted it to gain some insight to my own situation.  If you have something that is not directly related to a topic, don't post it.  Thank you :)

[AquarianDaddy]

Ok, so this evening she came to visit with our son and to bring him xmas gifts from her parents.  Now, she had came to visit with him and I had not means of talking about anything with her, yet she still picked and pried and asked why I was not allowing her to take him with her from time to time and why she must be forced to come here, to my current residence to see him.  I simply told her that I do not trust her and am only looking out for our sons own safety.  This made her angry and she began yelling in front of our child.  Her words were very angry and she used the F word several times in front of him as well.  I asked her to tone it down or leave.  She settled down a little and we started talking in a more civil manner.  She then went on to say 'what goes around comes around' and claims that she has a means of reversing the temporary custody order that I obtained and will soon have custody of our child.  She also stated that she has physical evidence that I have struck her but I know this cannot be true.  Bluffing?  Probably so.  I then asked her to be honest and to admit if she had been with this man prior to the event in which I caught her, and she still denies that but stated: 'afterwards, yes.  over and over again.  what I do is my business, not yours'    Now this is what leads me to believe she will more than likely subject our child to this type of behavior again and her merely seeing this man, while she has the child, is going to be detrimental to him.

Now, I was not able to physically document any of this aside from write it down in my 'journal'.  My question is, does this type of documentation provide me with any admissable evidence in court?  I have been told to document everything but could someone please define exactly what 'documenting' is as far as to what will be considered as evidence in court?

[mistoffolees]

I think you're doing the right thing. Write down everything that happens while it is still fresh in your mind. Personally, I try to write down everything and don't consider very many things as too small to record. You can always ignore the irrelevant stuff later. Do NOT put anything negative about yourself into the journal without being very, very careful. Try not to use emotionally charged language because it is possible (although unlikely) that your journal would be subpoenaed.

As I understand it, the journal is not admissible. However, when you are on the stand (or talking with the custody evaluator), you will probably be able to consult with the journal to refresh your memory. You will be asked if that is an accurate representation of what happened and you will respond "to the best of my memory, yes".

The journal does several things. First, it gives you a detailed timeline so when you do have to testify, you're less likely to get confused, particularly about dates. Second, it lends plausiblity - because you're recording the incident when it happens, not later. Finally, it will give you and your attorney things to focus on.

It will NOT, by itself, win a case for you because the court has no way to ensure that it's accurate. It is still your word against hers, this just makes your side a bit more credible.

Don't worry about her allegations. I would imagine that a huge percentage of cases have allegations thrown around. She has the same burden you do - what she says doesn't mean much -- only what she can prove.

Record her conversations when she's there if state law allows. Or make sure another adult is there when she drops gifts off or whatever. Her behavior in the presence of the child is absolutely relevant to the issue of custody. It would be nice if someone else besides you witnessed it.

Do NOT give her time with the child unless the court order specifies that she has visitation. If she makes a big enough issue of it, you might volunteer SUPERVISED visitation for her, but only if your attorney allows it.

[AquarianDaddy]

>Record her conversations when she's there if state law allows.
>Or make sure another adult is there when she drops gifts off
>or whatever. Her behavior in the presence of the child is
>absolutely relevant to the issue of custody. It would be nice
>if someone else besides you witnessed it.

Well, we are currently residing with my grandmother.  She witnessed her rage  and swearing in front of our child.  I had remained pretty stoic the whole time she was here, pretty much absorbing everything she had said and done.  Then when I felt things got too heated I told her to leave.

>Do NOT give her time with the child unless the court order
>specifies that she has visitation. If she makes a big enough
>issue of it, you might volunteer SUPERVISED visitation for
>her, but only if your attorney allows it.

As far as the court order, the only thing that I read was that I was granted temporary custody but there were no specifics on her visiting with him at all.
Also, I left the state of Ohio and moved in with family in Kentucky the day this whole mess happened and was granted the ex-parte temp. custody the following monday.  Now, I do not know Ohio's law regarding relocating but am I in the wrong for leaving the state with my child if I was designated as the temporary residential parent of the child?  My lawyer knew of this when I first filed for divorce/emergency ex-parte custody and I do recall asking him and I believe he said there would be no problem with it.  I will definitely be calling him tomorrow so we can arrange to meet and discuss my case more thoroughly.  
  Now, considering how horrible she performed tonight, should I cut off her visiting with him entirely until this goes to court or should I allow it and just let her dig herself deeper and start tape recording her every visit (discreetly).  I find that she easily loses it whenever she comes over and her actions seem very in despair.

[mistoffolees]

>Well, we are currently residing with my grandmother.  She
>witnessed her rage  and swearing in front of our child.  I had
>remained pretty stoic the whole time she was here, pretty much
>absorbing everything she had said and done.  Then when I felt
>things got too heated I told her to leave.

That's very good for your position. Admittedly, family members aren't the best witnesses since it is assumed that they're going to favor the family member, but it's still corroborating evidence. It would certainly help to back up your story.

>As far as the court order, the only thing that I read was that
>I was granted temporary custody but there were no specifics on
>her visiting with him at all.
>Also, I left the state of Ohio and moved in with family in
>Kentucky the day this whole mess happened and was granted the
>ex-parte temp. custody the following monday.  Now, I do not
>know Ohio's law regarding relocating but am I in the wrong for

I don't know the answer to that. You should consult with your attorney on the matter.  If you have sole legal custody (even on a temporary basis), you might be within your rights to prevent her from taking the child, but I just don't know.

>leaving the state with my child if I was designated as the
>temporary residential parent of the child?  My lawyer knew of
>this when I first filed for divorce/emergency ex-parte custody
>and I do recall asking him and I believe he said there would
>be no problem with it.  I will definitely be calling him
>tomorrow so we can arrange to meet and discuss my case more
>thoroughly.  

If your attorney said it was OK, I don't see any problem. Even if the judge says that you shouldn't have done it, you were acting on advice from attorney, so you are unlikely to be penalized. As it was explained to me, if there's nothing in the agreement discussing it, you are free to go whereever you wish.

>  Now, considering how horrible she performed tonight, should
>I cut off her visiting with him entirely until this goes to
>court or should I allow it and just let her dig herself deeper
>and start tape recording her every visit (discreetly).  I find
>that she easily loses it whenever she comes over and her
>actions seem very in despair.

When you talk with the attorney about the legality of recording her in your state. In my state, you can record your own conversation with an adult without permission, but may not under any circumstances record a child (I'm not sure what the rationale was for that). Your state may vary.

It seems like the ideal situation might be for you to volunteer to let the mother have visitation, but only if it's supervised. That protects you and the child, but also makes you the one proposing visitation - which is an indication that you're trying to work with her. It seems to me that this would be better than completely denying her visitation, but I'm not an attorney, so check with yours.

[AquarianDaddy]

So, I got a letter in the mail today from my STBX's lawyer requesting a rehearing regarding ex-parte custody and a restraining order against me. She states that I have no license BUT have sporadically showed up at her residence unannounced (funny, if I can't drive, how does this happen?). She is the one driving around on suspended license. I have no vehicle of my own but have very reliable transportation through my father and others in my family. She also stated that my employment has been unstable, and that I have abused her in the past. Now the abusive part is all allegations and she has never ever filed domestic violence charges (or any other charges on me) in the past.

Any advice on what may happen here?