Going Back To Court...UPDATED

[mistoffolees]

>
>The presumption is going to make it difficult to prove.  Which
>is wrong.  If my ex were to try and get 50/50 should the state

That's because you're not thinking it through. If you don't have a presumption of 50:50, then one party has to prove that the other parent isn't fit, anyway. Just why is this any different?

>I live in be stupid enough to enact a similar law, I would be
>able to not have it apply to me as there was domestic violence
>on his part.  But if there weren't, it would seriously
>traumatize my 5 year old to be forced into 50/50 physical
>custody.  My 7 year old would handle it better, but still not
>be happy about it.  

We're talking about just after a divorce. Since the family has presumably been living together before the divorce, 50:50 is likely to be less traumatic than losing one parent.

>
>If it weren't for the existence of domestic violence and an
>already established custody order, I would be told that my
>kids would adjust (which is what I was told about my then 4
>year old, who has never had an overnight away from me until
>last Sept., having overnight visits).  Well, it's been several
>months and my 5 year old doesn't want to see her father
>because she is afraid of having overnight visits.  She isn't
>adjusting.  She still sees her father because it is important
>that she have a relationship with him and my ex cares enough
>about her well-being that he hasn't had a full week-end with
>her in 2 months.  We are hoping that now Grandma and Grandpa
>are back from Florida, she will do better as she is always
>excited to see them.

What was the situation just before the divorce? Presumably, you all lived together.

You're taking a situation several years after the divorce - which isn't where this law would apply, anyway.

>
>The law isn't a good thing for the simple reason that it
>doesn't take into consideration the individuality of children.

Sure it does. It says that the best interest of the children is paramount. It simply says that the presumption is that 50:50 is in the best interest of the children. If it's not, you have the opportunity to prove it.

> And in really small children, it does not provide the
>stability that they need.  

Perhaps you should do some research. ALL children need both parents. The research is overwhelming.

>
>I believe very strongly that the presumption should be that
>the primary caretaker (regardless of gender) should be the one
>who gets primary custody.  It provides more stability for
>children during a time of turmoil.  

That's purely arbitrary. Who determines when 'primary caregiver' applies? What if one parent spends 51% of the time with the kids and the other 49%? The one spending 49% loses?  Is it 53%? 57%? And why should a father (usually) lose access to his child(ren) just because he's been supporting the family for years and spending less time at home.

Let's take my situation. My wife hadn't worked for 10 years and I worked full time. Yet every evening and most weekends, I had primary responsibility for my daughter. I also had primary responsibility for getting her ready for school in the morning. My daughter was always Daddy's Little Girl and I'm the one she always came to first when she needed something. Yet by simply measuring hours, my stbx was the 'primary caregiver'. But with the divorce, she's going back to work, so she won't have any more time to spend with the child than I do. In fact, in the past months when we've been 50:50, I've spent far more time with my daughter than she has. Yet by your standard, I'd be an EOW parent.

You're biased by a situation where the law wouldn't apply anywhere. For 'normal' situations, it's the only fair way to go.

[Jade]

>
>>
>>The presumption is going to make it difficult to prove.
>Which
>>is wrong.  If my ex were to try and get 50/50 should the
>state
>
>That's because you're not thinking it through. If you don't
>have a presumption of 50:50, then one party has to prove that
>the other parent isn't fit, anyway. Just why is this any
>different?
>


Just because I don't agree with you doesn't mean that I am not thinking it through.  


>>I live in be stupid enough to enact a similar law, I would
>be
>>able to not have it apply to me as there was domestic
>violence
>>on his part.  But if there weren't, it would seriously
>>traumatize my 5 year old to be forced into 50/50 physical
>>custody.  My 7 year old would handle it better, but still
>not
>>be happy about it.  
>
>We're talking about just after a divorce. Since the family has
>presumably been living together before the divorce, 50:50 is
>likely to be less traumatic than losing one parent.
>

Just because they were living together before the divorce doesn't mean that parenting is 50/50.  It never is.  



>>
>>If it weren't for the existence of domestic violence and an
>>already established custody order, I would be told that my
>>kids would adjust (which is what I was told about my then 4
>>year old, who has never had an overnight away from me until
>>last Sept., having overnight visits).  Well, it's been
>several
>>months and my 5 year old doesn't want to see her father
>>because she is afraid of having overnight visits.  She isn't
>>adjusting.  She still sees her father because it is
>important
>>that she have a relationship with him and my ex cares enough
>>about her well-being that he hasn't had a full week-end with
>>her in 2 months.  We are hoping that now Grandma and Grandpa
>>are back from Florida, she will do better as she is always
>>excited to see them.
>
>What was the situation just before the divorce? Presumably,
>you all lived together.
>

I was a stay at home mom raising my children.  The only time that my oldest was away from me overnight was when I had my second and the one time that he begged to spend the night at Grandma's house.  My youngest had never been away from me overnight until overnight visits started last Sept.  



>You're taking a situation several years after the divorce -
>which isn't where this law would apply, anyway.
>
It shouldn't apply at the time of divorce, either.  The presumption that 50/50 is in the best interest of the child is wrong and not in the best interest of the child.


>>
>>The law isn't a good thing for the simple reason that it
>>doesn't take into consideration the individuality of
>children.
>
>Sure it does. It says that the best interest of the children
>is paramount. It simply says that the presumption is that
>50:50 is in the best interest of the children. If it's not,
>you have the opportunity to prove it.
>
The law should not make a presumption of 50/50 simply because 50/50 parenting never existed even when the parents were together.

>> And in really small children, it does not provide the
>>stability that they need.  
>
>Perhaps you should do some research. ALL children need both
>parents. The research is overwhelming.
>
I have done research.  Perhaps you should expand your research beyond biased websites.

To be honest, I have worked with small children for years.  While they do need both parents, they also need stability.  And 50/50 does not allow for that in small children.


>>
>>I believe very strongly that the presumption should be that
>>the primary caretaker (regardless of gender) should be the
>one
>>who gets primary custody.  It provides more stability for
>>children during a time of turmoil.  
>
>That's purely arbitrary. Who determines when 'primary
>caregiver' applies? What if one parent spends 51% of the time
>with the kids and the other 49%? The one spending 49% loses?
>Is it 53%? 57%? And why should a father (usually) lose access
>to his child(ren) just because he's been supporting the family
>for years and spending less time at home.

I think that it is a pretty safe bet to say that when one parent stays home with the children and does all of the child care, one can say that that parent is the primary caregiver.  

A divorce is a very chaotic time for children.  And children (in particular small ones) are more comfortable with the primary parent.

>
>Let's take my situation. My wife hadn't worked for 10 years
>and I worked full time. Yet every evening and most weekends, I
>had primary responsibility for my daughter. I also had primary
>responsibility for getting her ready for school in the
>morning. My daughter was always Daddy's Little Girl and I'm
>the one she always came to first when she needed something.
>Yet by simply measuring hours, my stbx was the 'primary
>caregiver'. But with the divorce, she's going back to work, so
>she won't have any more time to spend with the child than I
>do. In fact, in the past months when we've been 50:50, I've
>spent far more time with my daughter than she has. Yet by your
>standard, I'd be an EOW parent.
>
>You're biased by a situation where the law wouldn't apply
>anywhere. For 'normal' situations, it's the only fair way to
>go.

Biased?  Because I don't agree with you?  Wow, what a biased statement.

[jilly]

We met with the attorney on Thursday afternoon, and, based on the comments I'd received here, I pretty much knew what she was going to say....we have to prove substantial change in circumstances.  As I said in my earlier posts, I knew that we couldn't do that and the best we could hope for would be to modify the current parenting plan.

So, we're going to put something together to present to the Ex that wold at least give DH a parenting plan with more teeth and to have his time with SD put in writing so the Ex can't change her mind because she's pissed off at DH.  If they can't agree, then they'll have to go to mediation and, if that fails, will go to court.

I understand that some of her actions don't fit the mold for substantial change of circumstances, but I don't see how it can be considered a good thing either.  I also can't grasp how it's not in SD's best interest to be able to spend more time with her Dad.  If her Mom and Dad were still together there is no court that would say that it's not in her best interest to be with both of them.  Why does that change just because they got divorced?  I'm not looking for advice on this.  I know it's just the messed up way the courts operate.  It just pisses me off sometimes the lack of common sense that is exhibited in the system.

I'll let ya know how things progress.

[MixedBag]

Jilly, take a look at what I told SAMSON above....

you said "If her Mom and Dad were still together there is no court that would say that it's not in her best interest to be with both of them. Why does that change just because they got divorced?"

Exact thing I ran up against, and I thought that this basic philosophy would prevail in a court room....and it didn't.

I'm with you on that philisophy....

Find an expert who will testify to this fact so that it becomes a FACT in your case.

For my son it's too late, and EX uses his as a weapon still.