If Parties Can't Agree--Changing Final Say

[InTheMiddle]

Dear Socrateaser---

My fiance is currently going to court to try and get sole custody of his children.  Divorce and father are in Arizona, birth mother lives in Texas with children.

The birth mother has over 50 police reports for domestic violence and child abuse in 3 years.  All different boyfriends doing the abuse, restraining orders on boyfriend(s) when the relationship ends.  It seems to be a pattern with her.  CPS refuses to get involved because the threat (boyfriend) is gone by the time they get there.

The children have PAS and have been coached to lie during thier interviews.  We think the birth mom has told them she will kill herself if she loses the kids, but we can't prove it.

They have joint legal custody, she has primary physical custody.  If the parties cannot agree, she has final say.  In light of the recent ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al. decision:

(1)  If the court decides that she retains physical custody, what are the possibilities that he can get final say?

[socrateaser]

>
>(1)  If the court decides that she retains physical custody,
>what are the possibilities that he can get final say?

Under ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al. decision stands for the proposition that a parent deprived of all "legal" custody, cannot advocate in court on behalf of his/or minor child.

Here, your facts unequivocally state that parents have "joint" custody,  therefore Newdow is completely inapplicable to your facts.

In order to obtain the "final say" as to major decisions concering the minor child(ren)'s health and welfare, a parent must show a substantial change in circumstances affecting the child's best interest. Your facts state that the mother has had 50 domestic violence police reports in the past 3 years. The facts don't say what the outcome of any of these reports were, or how the children have been affected by the behavior of the mother regarding these reports, nor do the facts state how many, if any, of the reports were made prior to the last custody order. So I can't tell whether or not the mother's acts represent a substantial change in circumstances.

If so, then anything and everything in the current custody orders are subject to modification, including the "final say" as to health and welfare issues. If not, then the court will simply deny the motion and dismiss the custody action.

[InTheMiddle]

"Your facts state that the mother has had 50 domestic violence police reports in the past 3 years. The facts don't say what the outcome of any of these reports were"

Boyfriend(s) had restraining orders filed against them and removed boyfriend(s)from the home.  The 50 police reports are between 3 boyfriends and a 2nd ex-husband.

"or how the children have been affected by the behavior of the mother regarding these reports"

According to the children, this is normal family-oriented behavior.  One police report shows child abuse, but the child who was abused said in court that the police report is lying.

"nor do the facts state how many, if any, of the reports were made prior to the last custody order."

The reports started 1 year after the divorce was finalized.  Prior to the last and only custody order, there were no police reports of any kind.

So you are saying that even if you don't have physical cusotdy, you can still request final say?

I read the Supreme Court Ruling on NEWDOW and the CA divorce said they had joint legal custody, but she had final say.  http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-1624
I hope I have interperted it wrong.

[socrateaser]

>So you are saying that even if you don't have physical
>cusotdy, you can still request final say?

No, that's not what I said.

The U.S. Supreme Court's decision in Elk Grove states that the mother of the minor child has sole legal custody. As a matter of law, and regardless of the Elk Grove decision, a parent who has sole legal custody, has the final say, because, when a court denies any legal custody to a parent, the court deprives that parent of ANY say about ANYTHING, regarding the minor child's health and welfare.

Because you have joint custody, you have the right to advocate on behalf of the child, and to have input into issues concerning the child's health and welfare. The Elk Grove decisiion amplifies existing law, by stating that a parent who is denied joint legal custody has no legal standing to bring ANY legal action before a court on behalf of their child.

The Elk Grove decision, frankly will need to be overruled in a hurry. It may be the worst thought out decision handed down by the U.S. Supreme Court in history, and its ramifications could be extremely burdensome on many non-custodial parents.

However, it has absolutely nothing to do with YOUR case, because you have "joint" custody. So, forget about it.

As for your wanting the final say, your facts suggest that the custodial mother routinely makes bad decisions in choosing male companions, and that the child is being negatively affected by those decisions. If you show that the effect of these decisions on the child is substantial and that they have occured since the court's last custody orders were made, then you will have a full custody hearing, complete with evaluations, as necessary to determine the better physical custodian of the child. And, as part of this investigation, you will be permitted to argue that you should have the "final say," in matters concerning the child's long term health and welfare.

However, if you DON'T make that showing, then the court will deny your motion for a custody mod, and that will be the end of your case, until you come up with a stronger set of facts.