My 12 year old daughter now wants to live with me- How do I get legal Custody

[el_lobito25]

My 12 year old daughter wants to come and live with me. I spoke to her mom, who has legal custody. Her mom says that she will give me a notarized letter transferring custody of our daughter to me. I don't believe her since she has backed out on me 3 times in the past. My questions are (1) if she does, will this be sufficient to take to court and get an updated court visitation order for both of us?
(2) if she backs out on me, what can I do to try and gain custody of my daughter?
I currently have her about 40% of the time. My daughter's grades are suffering, she now has an F and D's. She is tipically an A and B student. The relationship between her and her mother has also gone down tremendously.
I am located in Southern California

[Sherry1]

you have to file with the court for custody.  If your ex doesn't consent  to custody, you lose.

[mistoffolees]

Almost. If the JUDGE doesn't agree, you lose.

I'd focus on making the case that you should have custody and try to convince the judge. If you can make that case, it doesn't matter whether the ex agrees or not.

While the notarized document would not guarantee that you're going to win, I would make it a major part of my case if you can get her to sign it. Your ex has the right to change her mind, but your argument might include any of the following (see an attorney for assistance):

- On such and such a date, my ex felt that the best thing for the child was for me to have custody - and she even went so far as to get her agreement notarized.

- There have been no changes in circumstances since then, so if she's changed her mind, then you have to be careful about allowing her to attempt to change our child's life on a whim. She's obviously unable to reach a decision and stick with it.

Even if you can't get her to sign the document, if there are witnesses that she's flip-flopped on the topic, that would help to prove the same point.

Then, of course, you're going to want to demonstrate why you're a better parent. Watch the grades issue, though. If the daughter is with you 40% of the time, that could backfire. Without knowing the circumstances, my first impression is that the ex would claim that it's not her parenting that's at fault and that the child really needs the stability of one home rather than two - particularly since the two of you can't make the communications work (even if she's the one who's at fault, here). If she can successfully make that case, you could find that your 40% drops to every other weekend unless you can prove that the daughter should be with you.

That's one of the flaws with shared parenting. If one parent is a PIA, they can argue that shared parenting doesn't work in your situation. If it's the wife who's the PIA, she can often get sole physical custody precisely because she's a PIA. If you point out that she's a PIA and impossible to work with, that merely strengthens her argument for sole custody.

On the plus side, your daughter is getting close to the age where her wishes will matter.

I would suggest that you get the best family law attorney you can find (particularly one who specializes in father's rights) to help you through this. One strategy might be to push for a custody evaluation if you and your attorney are confident that you can win. Unfortunately, it won't be cheap, but it's probably worth it.

Good luck.

[junglechicken]

I have a 12 year old stepdaughter.  We went through this very recently - last month, in fact.  It hasn't gotten to court, though - I'll explain.

Oldest stepdaughter (osd) turned 12 in November.  In December she told her dad, my husband, that she wants to live here fulltime.  We currently share custody of her and her younger sister, ysd, with the bm.  BM's address is used as custodial for school, which is out of our school boundary, although we live in the same city.

Now, we've seen this coming for some time, so we had a sort of plan.  Like your daughter, my osd and her mother don't generally get along all that well.   My dh told osd that in order for a custody change to occur, *she* has to initiate it, meaning osd.  by that, I mean osd has to want it, and she has to be the driving force behind it.  DH will file for it, but only if osd is insistent, and on her behalf - not his own.

We asked osd what her reasons are, and she stated two primary ones:  a)her mother's boyfriend, who is an asshole (to explain specifics would take too long - there are years of examples) and b)the smoking by the bm and her bf.  Both are, we thought, very good reasons, as opposed to more frivolous reasons kids could come up with, ie not liking rules, or having to share a bedroom at mom's house vs having their own at dad's, etc.

Now that it's been abuot a month, osd states the relationship between her and her mother has improved.  The bf is still htere and so's the smoking, but they don't seem to be huge issues to osd now.  Why?

She's 12.  Just remember that about your daughter, too.   She's *12*.

Reason #1 why 12 year old's aren't old enough to choose where they want to live.  They aren't mature enough.  My osd is pretty mature, but to ask her to choose between her parents is evidently too much for her.  And I can't blame her.

My points in all this are as follows:

1.  Custody battles are expensive, in time, money and whatever relationship you do have with the other parent.  Choose them wisely.

2.  Teen and preteen girls are not going to get along with their mothers.  It's a fact of life.  It is also not going to win you a custody battle, should it turn into a battle.

3.  To get a custody change, you need to do your research as to what constitutes a substantial change of circumstance.  Your daughter wanting it counts, I do believe...but she needs to stand up for herself.  If the fact that your daughter wants it is the only reason, and there aren't more serious ones, and she waffles, IMHO, that's good reason to abandon it altogether.  Fighting over your kids, isn't what's best for your kids.  Try to avoid it.

Good luck.

[mistoffolees]

Why are you being so reasonable? If everyone were as reasonable as that, what would all the poor divorce attorneys have to do with their time?   ;-)

[Mamacass]

We went through this too.  My SS's mom twice told us she was giving us full custody and twice she backed out.  But each time she gave us a little more time that our visitation schedule had given us previously.  Now the first time nothing was in writing.  The second time SHE wrote up a paper stating there would be joint custody and no child support.  We got the paper signed and notarized and thought everything was peachy.  

Until she decided that she didn't want to stick with it.  If she was upset over something, or wanted SS to do something with her on one of our weekends, she would just tell us we weren't getting him.  We couldn't enforce the agreement with the police, b/c it wasn't through the courts.  The only thing we could enforce through the courts was our original visitation schedule.  

On the flip side, we got SS more for a few years than we could have if we had gone through the courts.  And BM told us she would only agree to this as long as we didn't go through the courts.  So it was worth it to us to get the extra time, even if it wasn't official and we couldn't enforce it.  

Now when we went to court for custody, the agreement was brought up, and it showed that SS spent a substantial amount of time with us, so changing custody wouldn't be a huge change.  (A whole lot more involved in the case, lets just say BM has lots of personal problems.)  So although it didn't win our case by itself, it did help.  And yes, we won our case!

BUT, don't make the mistake we did.  When we filed for custody, she counter filed for all the child support we hadn't paid.  We go to court for that next month, but are thinking we'll probably have to pay 2.5 yrs worth back to her (or at least a substantial amount).  Even though she wrote, signed and notarized to an agreement of no child support being paid and that she would request to cease to current order, it doesn't mean anything b/c its not through the courts.  It's a shame b/c we paid child care which was included in the support, and we also paid for a lot of SS's clothes for both houses as well.  So we'll basically pay double for SS for those years (which we can't afford).  

Now from what I understand, if you do get the signed notarized agreement, you can file through the courts and list that as to why you are requesting a change in the current order.  I don't know how much influence that would have if the mom goes in and says she changed her mind.   It might be better to file as soon as she signs it, but it might be better to wait and establish a norm of your child spending more time with you.  You should ask Socrateaser about that.

[junglechicken]

bm have to do with her time?  ;)  Being reasonable takes away her drama.

But really, it's not about attorneys, or bm, or even us.  It's about waht's best for osd.  We know what is best for her, but she's gotta feel it too, osd that is, or it won't work.