Modification Custody Evaluation in Florida

[justme73]

Currently my ex and I have joint custody with 50/50 rotation. I gave him 'primary residential' status in consent/mediation but with special stipulations that protect my 'equal parental rights' or decision making rights (bad idea)... it has been all about control for him from the beginning. after many violations of the civil order, i filed contempt in november 2003.

the case is still lingering, because when his lawyer heard the judge pretty much say there were contempt issues (but he wanted us to go to mediation to work out details before he ruled), they filed for full custody based on my purchasing a new home and moving a little further away (but in same city), and that the children are now in school... doesn't seem like substantial change in circumstances to me.

BUT, we pretty much had to counter for modification of custody on what i feel to be better grounds (ie incommodious and unhealthy living conditions: he remarried and move 4 more people and a large indoor dog into his 1000 sqft home.. now 6 people in two bedroom, 1 bath with many pets that he knows my daughter is allergic to and triggers her asthma, he was investigated by department of families due to pediatrician's call because he was smoking around my daughter and refusing to administer the prescribed medication, multiple violations of 'shared parental responsibility' creating a combative parental relationship, etc...

the judge has just today ordered a custody evaluator.. a lawyer this time. he wishes a lawyer to conduct the evaluation since she will understand 'burden of proof' and what constitutes 'substantial change in circumstances'. I feel like this will be completely different from our previous evaluation in that it will be more about 'substantial change' than normal evaluation process. so for me all of the info online about custody eval. does not help me much.

basically it boils down to this... our judge does not like 50/50 custody situations and my lawyer says that she cannot beleive he signed it in the first place.. that it is rare for him. so this means it will not be 50/50 when this is all over.

i also am curious about what the court feels the role of 'primary residential parent' to be. In other words... we had no problems the first 2 years after the divorce, because even though he had primary status (for CS purposes) I accepted the responsibility of the role (ie doctor appts, dentist appts, haircuts, etc...)

since he remarried, he forcefully refused to allow me to do those things. going as far as to change doctors and dentists, not revealing their identity, so that his new wife would take them. in fact, he even emailed me requesting that i not take the kids to have their hair cut... that she would do that.

I would think that if the situation were reverse and i were 'primary' and my husband actually peformed all of the responsibilities... it would not look good.

1. how does the court feel about the role of 'primary residential parent' and the responsibilities of that role?

2. what needs to be emphasised in this type of evaluation?

3. should we seek a consultation with a lawyer/experienced custody evaluator to go over our notes to prepare (i have one in mind)?

4. because i 'consent' to the primary parent designation in consent to final judgment, does that give him the upper hand. meaning, do i have to prove to a greater degree 'substantial change in circumstances'?

[justme73]

another question... I just read in an appeal case in Missouri (opinion)
"No showing of a substantial and continuing change in circumstances is required to modify visitation"

5. because i agreed to allowing him the 'primary' status (regretfully) does florida law also uphold that he will not have to show substantial and continuing change in circumstances to change the 50/50 rotating schedule to 4th judicial guidlines?

[socrateaser]

>1. how does the court feel about the role of 'primary
>residential parent' and the responsibilities of that role?

Every judge has his/her own biases. If you want to know anything about yours, then go to the courthouse and spend a day watching the judge do his/her job.

Legally, the primary caretaker is generally responsible for making the day-to-day decisions concerning the child's health, education and welfare.

>
>2. what needs to be emphasised in this type of evaluation?

If the judge wants an attorney to do the evaluation, then you may want to consider getting your own eval from a child psychologist to challenge the attorney's conclusions -- assuming things aren't going your way in the eval process.
>
>3. should we seek a consultation with a lawyer/experienced
>custody evaluator to go over our notes to prepare (i have one
>in mind)?

I suppose. But it all boils down to your relationship with the child. Frame all of your thinking by asking yourself, "what's in my child's best interests?" Whatever answer jumps out at you is usually the right answer for the evaluator and the court.
>
>4. because i 'consent' to the primary parent designation in
>consent to final judgment, does that give him the upper hand.
>meaning, do i have to prove to a greater degree 'substantial
>change in circumstances'?

You need to show clearly and convincingly that something has changed to affect the child's life either negatively or positively. If you do, you get a new trial, if you don't, then you don't.

[socrateaser]

>5. because i agreed to allowing him the 'primary' status
>(regretfully) does florida law also uphold that he will not
>have to show substantial and continuing change in
>circumstances to change the 50/50 rotating schedule to 4th
>judicial guidlines?

The modern trend is for the court to determine custody separately from parenting time. Frankly, this is done because custody situations are fluid and the courts were all hamstrung by the substantial change doctrine. So, rather than wait a decade for the supreme court to modify the doctrine, the lower courts just made up a new one -- the legal custodian, with responsibility for making major life changing decisions doesn't change, but the day to day parenting schedule can be massaged as necessary, as long as it satisfies the lower "best interests" standard.

[justme73]

>Legally, the primary caretaker is generally responsible for making the >day-to-day decisions concerning the child's health, education and welfare.

maybe i didn't mention, but according to my lawyer, our situation is unique. she did state that usually 'primary residential parent' does have the final say in decisions regarding the children, but because our final judgment was worded differently that our situation is 'joint' decision making.

our final judgment contains specific instructions on decision-making and what we are to do if we do not agree (in 4 steps). it states:
"should the parties have a disagreement pertaining to the shared parental responsibility concerning the minor children, then the parties shall first: a. Considere the wishes of the minor child; b. Then if an agreement cannot be reached the parties shall self mediate any issues in disagreement; c. If an agreement is still not reached, the parties shall agree with the recommendations of their pastor or family counselor."

this has been part of my contempt pleadings. i have on at least 5-6 occasions (on important issues) attempted to envoke the third party portion of that process... which he denied my request and forcefully did what he wished to do.

>I suppose. But it all boils down to your relationship with the child. Frame >all of your thinking by asking yourself, "what's in my child's best >interests?" Whatever answer jumps out at you is usually the right answer >for the evaluator and the court.

i have a great relationship with the kids. and i know without a doubt they want to be here. the ex knows this too and has admitted to it, but states that it doesn't matter what they want, that no one will ask them where they want to live. i don't think anyone should ask them... but the fact that he knows what their wishes are and wants to fight them.

1. so if i can show proof that since the entry of the final judgment that i have been taking care of the childrens needs (health, education, etc..) until he recently married and has forced his wife to take over those things... meaning that as 'primary' he has not fulfilled his role. is that important?

[socrateaser]

>1. so if i can show proof that since the entry of the final
>judgment that i have been taking care of the childrens needs
>(health, education, etc..) until he recently married and has
>forced his wife to take over those things... meaning that as
>'primary' he has not fulfilled his role. is that important?

I just reread your other posts. If both parents have moved for a new custody hearing, then the substantial change in circumstances burden is lifted is waived and the judge has authority to issue a new custody decision.

You are now dealing only with the child's best interests. whoever shows that they are even slightly the better parent will win here, because you are already both at 50/50 -- everything is split at the moment.

So, if your judge doesn't like 50/50 then this will be his opportunity to change it. In my opinion, then the children's wishes, if they are mature enough to communicate them, will control the outcome. And, I suggest that this is why the judge has chosen an attorney to evaluate the situation.

You have a really lousy situation. if you want to save a lot of money, you should try to sit down across the table from each other and work the stuff out. if you don't, this is the sort of thing that could get real expensive, because both sides see the finish line as a dead heat...

I can hear the attorneys talking to their clients...

"if we only did this or only had this witness or this eval, then it would be in the bag, etc."

If you can still live with 50/50, I'd suggest that you leave an offer for mediation open. It should be mediation with your attorneys present, and maybe even a psychologist or even a pastor, if your both religious.

The objective is to try to get both of you to admit that you're only hurting each other by fighting for control, and that the kids would be better off if you'ld raise the white flag and just, as rodney king once set, "...all just try and get along here!"