Change of Custody order

[PT_Dad]

I've been divorced now for 2+ years and with each passing day I rue the decisions I made with regard to our divorce settlement and custody arrangements.

The gist is, I had a big problem with viewing and acting out with online teenage porn (mostly the illegal kind) when we were still married, a problem which, through counseling and the always clear hindsight, I realize was my escape from a really, really bad marriage and a controlling, manipulative wife. (I now have a clean slate, no porn whatsoever. I also quit smoking, something I could never do before.)

She then used this to basically blackmail me into agreeing to allow her to have full physical and legal custody of our (now) 5 year old daughter, to have no say in her upbringing and to have no set visitation rights. Which amounts to her being able to take away my visitation whenever she feels the urge.

Part of the agreement also specified that I needed to live with my parents, because she doesn't trust me alone with our daughter. Although, I would not be able to afford a place of my own anyway, since I give half of my paycheck to my ex every pay day.

However, last year she was diagnosed with an inoperable tumor and has since been in and out of the hospital regularly, has had ongoing treatments and is sick more than she is well (well, she was actually like that even before the cancer). This, in turn has made me her 24/7-on-call-babysitter.  I can never make plans, because without fail if I do, she will call and ask me to pick up our daughter. If I say no, I am guilted into changing my plans. (as a side note to those who may be thinking that I shouldn't complain about this, it appears that she is well enough to go out several nights a week and usually has a 'relapse' after a night out. But I don't say a word.)

So really, I have been placed in the role of the primary parent, even though I legally have no rights in that area. So I am at my ex's mercy for the next 13 years.

Don't get me wrong, I love every second of time spend with my daughter, BUT, she lives an hour away and her mother will sometimes have me running up and down there twice a day (4 hours of driving) several days a week. This, in turn, makes me consistently late for work and needing to leave work early in order to pick my daughter up in time from her preschool, lest I pay even more than I already am in that area. My every other weekend has also turned into *every* weekend lately.

My daughter never wants to go back to her mother's house anymore either.

I don't know enough about laws to know if I could actually win a change of custody case or not. Can anyone help? I'm in PA if that helps at all.

[Troubledmom]

You will need to show the court "evidence" of the amount of time you are spending with your daughter.
 
My first suggestion is either the Parenting TimeTracker available here at Sparc http://www.deltabravo.net/custody/tracker.htm or the OPTIMAL Time Tracker http://www.parentingtime.net/ipn/delta_signup.php both of these programs give a clear idea of the amount of time each parent is actually spending with the child.

Your child's pre-school, if it is one where you have to sign the child in and out each day is another good source of "evidence". The sign in/out logs will show how often you pick the child up.

http://www.deltabravo.net/custody/tips1.htm Here is a great article relating to keeping documentation that the courts will look at.

Now for the reality, chances are that your Ex having had sole legal and physical for 2 years will most likely mean that barring her having actually physically abused your daughter the courts will not order a custody change.  Additionally, if she pleads with the court that the only reason you have had so much time is because she has cancer, you WILL come out looking like an ass for trying to take a "dying" mothers child away from her.

WHAT can happen, and if you have good documentation to back up what you have said about the time you spend with your child you should be able to gain Joint Custody.

My suggestion is to interview several attornies and find one who will promote the best interest of your child to the courts. Yours will most likely not be a case that can be handled without legal advise.

TM

[Kitty C.]

There's another approach here, TM, that I think he should consider, and it doesn't point a finger at him being uncaring of the 'sick' mother.  The reasons for establishing the current order are no longer valid, thus the reason for changing custody.  Plus, given how much he has had her (Use that Tracker!) and 'why', it will prove to the court that something else MUST be established now, for the welfare of the child.

And if the mother cries foul and tries to use the old excuses that established the current order, she won't have a snowball's chance in hell, cuz she's proven a track record that she feels their daughter is perfectly safe with him.

You need a damn good father-friendly atty., Dad, and you need to get going on this.  With how you've described the BM, there is always that possibility that she may end up dying sooner than later, and if that happens and you don't have at LEAST joint legal, your daughter could end up in a ward of the state.

[PT_Dad]

Thanks TM. I knew it wouldn't be an easy thing, I really just wanted to know if I have any kind of chance. I love that little girl and I know the driving all the time and not knowing who is going to pick her up from school is taking a toll on her as well.

I'm really not an ass, I have bent over backwards to try and help her with things, I'm never late with support and much as I'd like to sometimes, I never say negative things about her while our daughter is around.

[PT_Dad]

>You need a damn good father-friendly atty., Dad, and you need
>to get going on this.  With how you've described the BM, there
>is always that possibility that she may end up dying sooner
>than later, and if that happens and you don't have at LEAST
>joint legal, your daughter could end up in a ward of the
>state.

A ward of the state??!! I always thought that in that kind of situation the child would go to the next of kin. How is that possible when she has a biological father who WANTS to have her full time?

Does it make any difference that there is no real custody order, that it's just a part of the divorce decree and is a document that we made ourselves? Granted, the judge signed off on it, but there really is no custody order per say...

[Kitty C.]

If you don't even have joint legal right now, there's every reason to believe that she'd be put in foster care if anything happened to the mother.  It's NOT an automatic thing that a child would go to the surviving parent or family.

If you have an order of ANY kind, that is what would be enforced right now and the only thing they have to go on.  Hence the reason for modification, given the original reasons for the way the current order was established no longer exist, plus the fact that the mother's health is deteriorating.

Many fathers who have desperately wanted their children have had to helplessly stand by and watch while the state took custody of their kids.  if you get a good atty., and get your ducks in a row, you can lessen that possibility dramatically.  In fact, you ought to demand a provision in your modification that, upon the event of a parent's demise, the other parent automatically gets physical and legal custody.  That will cover the bases and ensure that you child comes directly to you if she kicks.

[Troubledmom]

An article here at Sparc regarding the State taking custody of your child...

http://www.deltabravo.net/custody/ifcpdies.htm

TM

[Troubledmom]

You are correct Kitty.
The warning I was attempting to give was to not make it appear as if she were a "bad" mother because she is ill, rather to show through the time tracker that he has been caring for the child during Mom's illness and should be permitted the right by the court to continue the relationship at the current time share his child has enjoyed.

TM

[treadiing water]

Here is a suggestion, start with small steps.  Pitch it to the mother that: "You want to help her in her time of need and that one way you could do this is to take your daughter of her hands on a regular basis, like every wednesday night.  Of course, it would be best all around if you had some legal standing in case something were to happen (be careful how you say this - you don't want to set off alarms) so maybe she could modify the order just to reflect that you have joint legal custody."  Pitch it to her that it really doesn't mean that much and that if it ever came down to you wanting something for your daughter that she didn't agree with, you know that in a court battle your ex would win since she has residential custody and the courts usually side with the CP.  Do this as nicely and innocuously as you can.  The idea is to get that foot in the door for when your ex passes on.  Once that joint legal is established there should be no problem with custody after the mother dies.  

The idea is to frame everything in a way that shows you are concerned for the welfare of the mother more so than the daughter.  Talk to your ex in terms of how you can help her instead of advancing your own needs and wants.  If you can get her to believe this she might soften up and go for it in some degree.

In short, try to finesse her first.  If that doesn't work you can pull out the attorneys and go to town in court.

[PT_Dad]

Thank you to everyone who responded. My eyes have really been opened. I had no idea about most of this and certainly not about the custody issues.