New father, new custody case, old troubles

[durandal]

I am a 40 year old, single non-custodial father of a nine month old infant girl – my only child – I am seeking custody thru the courts here in Virginia Beach, VA. Two weeks after birth, I filled out papers with the Division of Child Support Enforcement (DCSE) to confirm paternity, and, if positive to begin support payments. This I did of my own free will for my daughter's sake. I declined signing the birth certificate at the hospital because I was uncertain that the child was my own.

Since birth, I have been as responsible as possible – I have been there since birth trying to participate in her life. The CP has been using the child to manipulate me in attempts to foster a relationship that will not work. I have not been allowed to spend time with my daughter outside of the CP's home since birth, and to this day have had to parent my daughter at the CP's home under the mother's watchful eye. The mother has told anyone who will listen that I am an absentee father, and has been able to generate plenty of outreach support and welfare payments during this time.

In October while visiting my daughter, the CP and I were in a heated argument about this arrangement and I left. Later that week, I was arrested for assault and battery, and released on recognizance. The case was later dropped by the Prosecuting Attorney's with the CP's agreement. I refused taking anger management classes since I didn't do anything wrong – and her written statements are so blatantly false that I believe any judge reviewing them will see them for what they are.

She even violated the restraining order of no contact issued against me as a result of this. She called asking me to call her – in essence soliciting me to violate the restraining order – which I did not do. After that incident, I filed the petition for custody. My court date is Feb 22 – just a few weeks from now.

Since then, my situation has gone from normal to SNAFU. I was living with roommates at the time, but the combination of support payments, school loan repayments and an auto repossession have crippled me financially. I have been forced to move in with a co-worker and share a condo with her and her grandmother. None of us smoke in the home – I don't smoke at all.

I will need to file bankruptcy to get back on my feet. I am employed full time with the same employer for over four years. I have had difficulty with paying bills, traffic tickets, etc. (and still have some outstanding) but have never missed any support payments. I am seeking forebearance with the student loans but haven't heard anything yet.

The CP has five children, ages 4, 5, 12, 14 and our girl. CP has lost custody of all four and only has my daughter. She is a convicted felon for domestic violence. She owes $3K of back child support for her two youngest, and would have been jailed save the fact that she was pregnant at the time of her trial. I feel she is going to try to use last year's taxes (since I now cannot say that the child was with me at least part time) to pay her past due support. She always comments on sending their father a empty envelope for payment.

The CP lives with a sixty year old man (she's 34) who she claims to take care of. They both smoke in the home, at least a pack a day for each of them. He has COPD (chronic bronchitis), receives S.S. for his disability, and can't even lift the baby up much less offer any real assistance in caring for her. In the five years that I've known her, she's worked a total of two months at a job and quit because she couldn't get along with management.

I charged her with annoying ringing in December to stop her from making excessive calls, sometimes 40 to 50 times a night in the middle of the night, always swearing, making statements about moving out of town with my daughter, saying that she doesn't trust me with taking my own child out of her home, having men call at 4 am, etc. I have this all recorded – she left messages on my answering machine leaving her name clearly in the messages. But because I could not afford an attorney at the time, she was able to lie and manipulate her way out of the charge – the judge dropped the case.

I was unfamiliar with the subpoena process and failed to get the tape evidence admitted to the courtroom. Prior to this trial, I had went before a magistrate twice in the past and was told that I couldn't do anything about her phone calls until the time she violated the restraining order. I don't want to make that mistake twice. She has since called my job and lied, telling an office worker that I stole something from her home.

Since then, I have been buying baby furniture, clothing and joined a group called Fathers In Training sponsored by the Virginia Dept of Social Services. Its for fathers who have been court ordered to attend conflict resolution classes and to learn better parenting skills – again I did this of my own free will. I haven't been to see my daughter for about a month now – I don't want to risk the CP fabricating some trap to get me in trouble – and of course it hurts me to be away from my child. Although I'm no stranger to raising kids (I've helped with my brothers' and have two godchildren), I also have a network of friends and several babysitters lined up who are also close friends.

My questions are:

1) Given my severe financial difficulty now, which would be alleviated with bankruptcy, reduced or eliminated support payments, and forebearance (or at least reduction) in loan payments, do I have any chance of gaining custody of my daughter?

2) Will my financial status outweigh her attempts to frustrate my parenting?

3) In the event that I am unable to secure the attorney I have chosen (I have about half of her retainer's fee), is it likely that the courts will grant an continuance for that reason? They haven't been very understanding up until now.

4) I want to be *as ready as possible* given the situation, but any fees I pay for subpoena's now comes out of my retainer savings. Do I need to subpoena people, documents and evidence now, at this stage, or will their likely be hearings, court ordered tests and visits, etc. before I get to subpoenas?

5) I don't see joint custody as a viable alternative – she will only use it as a tool to create a crisis and try to do damage to me or to get the child back. What are the courts likely to think - given our history?

6) I'm not trying to remove the child from the CP's life, I just feel that if I were the CP, I would be more fair and willing to share the responsibility equally, something her mother is not able to do. What weight will this have in the courts view?


If you have any other advice (other than get that retainer fee – doggedly working on that) I would greatly appreciate it!

[socrateaser]

>My questions are:
>
>1) Given my severe financial difficulty now, which would be
>alleviated with bankruptcy, reduced or eliminated support
>payments, and forebearance (or at least reduction) in loan
>payments, do I have any chance of gaining custody of my
>daughter?

If you are saying that unless you get financial relief, you will have to go it alone in court, my answer is you don't have a chance at getting custody.

>
>2) Will my financial status outweigh her attempts to frustrate
>my parenting?

I don't understand the question.

>
>3) In the event that I am unable to secure the attorney I have
>chosen (I have about half of her retainer's fee), is it likely
>that the courts will grant an continuance for that reason?
>They haven't been very understanding up until now.

It's up to the judge. I wouldn't count on it.

>
>4) I want to be *as ready as possible* given the situation,
>but any fees I pay for subpoena's now comes out of my retainer
>savings. Do I need to subpoena people, documents and evidence
>now, at this stage, or will their likely be hearings, court
>ordered tests and visits, etc. before I get to subpoenas?

I don't know what stage you're in.

>
>5) I don't see joint custody as a viable alternative – she
>will only use it as a tool to create a crisis and try to do
>damage to me or to get the child back. What are the courts
>likely to think - given our history?

Probably that you can't cooperate so joint custody is not advised.

>6) I'm not trying to remove the child from the CP's life, I
>just feel that if I were the CP, I would be more fair and
>willing to share the responsibility equally, something her
>mother is not able to do. What weight will this have in the
>courts view?

Taking the high road is good, from the court's perspective. However, from your facts, it appears that your best case is to prove habitual unfitness to parent, by bringing the father(s) of the CP's other children in to testify to all of CP's bad traits. Ordinarily, this is a bad idea because it makes you look hostile and vindictive. But, in this case, because the CP's history is so overt, I think it's the way to go.

[durandal]

RESPONSE

>If you are saying that unless you get financial relief, you will have to >go it alone in court, my answer is you don't have a chance at getting >custody.

I'm not being clear. I WILL retain an attorney.

>2) Will my financial status outweigh her attempts to frustrate
>my parenting?
>I don't understand the question.

I'm trying to understand if (in the courts' analysis) the matter of the CP constantly attempting to minimize my involvement with the child is as serious, or more/less serious an issue as being in a temporary financial hardship. I have a good job, stable income, but last fall the 'perfect storm' hit me, and it has taken me this long to resolve the matters. In six months (most likely much sooner), the financial issues will be irrelevant and I am certain I will be able to support a child and myself with my income.

>It's up to the judge. I wouldn't count on it.
>I don't know what stage you're in.

I lumped these two together - basically I filed my first petition for custody, visitation and child support all at the sime time - last November.
Feb. 22 is the first day that I will appear in court for these petitions. Nothing else has transpired w/ regards to these issues. I'm trying to determine what I need to appear with on that date. Will I need to have the attorney there for this, the first court date? Will I need to have witnesses/evidence subpoena'd to appear at the first court date?

>Ordinarily, this is a bad idea because it makes you look hostile and >vindictive. But, in this case, because the CP's history is so overt, I >think it's the way to go.

Yes, and I neglected to mention that her aunt (the only family member who still communicates with her in any way) helped another of the fathers to get custody from her, and if subpoena'd, will testify on my behalf. She knows the CP, and how she behaves.

durandal

[socrateaser]

>>2) Will my financial status outweigh her attempts to
>frustrate
>>my parenting?
>>I don't understand the question.
>
>I'm trying to understand if (in the courts' analysis) the
>matter of the CP constantly attempting to minimize my
>involvement with the child is as serious, or more/less serious
>an issue as being in a temporary financial hardship. I have a
>good job, stable income, but last fall the 'perfect storm' hit
>me, and it has taken me this long to resolve the matters. In
>six months (most likely much sooner), the financial issues
>will be irrelevant and I am certain I will be able to support
>a child and myself with my income.

It's serious, but without a custody evaluator or a GAL to report to the judge that this behavior is routinely occuring, it's generally impossible to prove. In your case, however, you have loads of witnesses and evidence from past custody cases, which you should be able to use to demonstrate a habitual pattern of bad parenting on the other party's part.

>I lumped these two together - basically I filed my first
>petition for custody, visitation and child support all at the
>sime time - last November.
>Feb. 22 is the first day that I will appear in court for these
>petitions. Nothing else has transpired w/ regards to these
>issues. I'm trying to determine what I need to appear with on
>that date. Will I need to have the attorney there for this,
>the first court date? Will I need to have witnesses/evidence
>subpoena'd to appear at the first court date?

I sure would have an attorney present your case. You need a pleading that has some objective evidence attached which shows the other parent's bad parenting skills. I don't think you're ready to write that sort of pleading.

As for whether you need the witnesses there for the hearing, probably not. The court will be looking to understand the scope of evidence that you claim to have available. If your documents contained court findings from other custody actions, or current statements from disinterested witnesses about the unfitness of the other party to parent, that will be enough to get the court's attention.

If you don't have this sort of stuff available, you could end up with your petition dismissed. So, I strongly suggest you get that attorney up to speed before there's no time left.

>Yes, and I neglected to mention that her aunt (the only family
>member who still communicates with her in any way) helped
>another of the fathers to get custody from her, and if
>subpoena'd, will testify on my behalf. She knows the CP, and
>how she behaves.

This would be an excellent witness.