Caretaking - Custody Change?

[YorkieTiki]

Parents share joint legal custody of two children ages 7 and 8 with mother having primary physical custody and father having visitation of 2 weekends per month plus one overnight and one afternoon every week, and even holiday distribution.  ROFR applies to everyone except step-parents and the occasional stay with a grandparent.

Mother works 11pm-7am Sunday through Thursday and is unable to care for the children's basic needs.  She can't be there at night and get them up in the morning, get them ready and take them to school.  She can't (won't) pick them up from school because she's sleeping; can't (won't) fix their dinner, help them with homework, take care of bedtime – again, she's sleeping.  This was told to the father by the older child ("Mommy doesn't do anything – she's always sleeping.  Stepdad takes care of us").

Her husband, the kids' stepfather who normally does all of the caretaking, was recently in a very bad accident and is bedridden for at least three months, after which he'll need extensive physical therapy just to be able to stand and start walking again.  Meanwhile the mother has asked family members to come stay with them to care for her husband and the kids while she works.  Keep in mind, this will be for at least 3 months – possibly up to a year.

The kids' father, who is only minutes away, wants desperately to take care of his children.  He's always felt it was wrong that a step-parent has been raising his kids when he is more than willing and capable, and it's his right.

Questions:

1) Is this enough to justify a "Change in Circumstances," proving the mother does NOT take care of the children?
2) Is this enough to accomplish #1 and get temporary physical custody?

Thank you!

[socrateaser]

>Questions:
>
>1) Is this enough to justify a "Change in Circumstances,"
>proving the mother does NOT take care of the children?

Two issues arise: a) How do you prove the mother's bad acts, as they're all occurring behind closed doors, if she denies your allegations? b) Suppose the mother just quits her job as soon as you serve her with a motion to modify -- that would pretty much destroy your entire case.

>2) Is this enough to accomplish #1 and get temporary physical
>custody?

If you could clearly and convincingly prove, at a preliminary hearing, that the mother has not been caring for the child and that the stepfather is unable to do so, that would be a pretty strong case. But, as the mother can alter her behavior and wreck your argument, I'm not very excited about your chances.

[YorkieTiki]

Good points, Soc.  She is a slippery one.  I'm not excited about the chances either, never was, but had to ask.

thanks!