California; X wants only 1 of our boys, not both

[seb1670]

I reside in Stanislaus County, X Resides in Santa Clara County. I have custody of our two boys 13 & 12 for over 6 years. I do not have any old copies of our paperwork – I am in the process of obtaining themt in the near future (next week). The case is in Santa Clara County, CA.

FACTS;

X and I separated and started proceedings 6 years ago. I was under the impression when I signed the final papers that the X would do her part - she dropped the ball, and I've assumed I have been divorced for over 6 years.

I left the residence due to the affair, and her increased drug use. I came back for my two boys within a month - she gladly gave them up. She never fought custody. She has not wanted visitation until recently. She has abandoned them for almost the entire 6 years, with few phone calls.

Child Support order was put in place in 2001. She has some how had a "Reserve" or Hold put on the amount owed. She owes $56,000.00 in arrears. She ditches wage garnishments, and still has her license and refuses to file taxes.

She just recently told me that the divorce was never finalized, and that she wants custody of only one child for the school year, while the other child will be taken only for the summer. I will not agree to this. She needs to take them both for visitation, and I will fight custody.

She has stated that she cannot handle both boys at the same time with her 4 year old. Her Cousin/Boyfriend is in Prison for drugs and assault. I have a concern that she will continue a relationship with him when he gets out. She chose him over our kids before, I don't want the boys to go through that again. He abused them, mistreated them and left them in their room all day when he came home from work.

She has produced a child with her cousin. She has been self-supportive and supported by her cousin/boyfriend for almost the entire time we have been separated. Now she is asking for Spousal Support, and custody of only one child.

She lives in a neighborhood that has seen some action, robberies, break-ins, gun-fire. There are gang tags in the neighborhood. She has a one bedroom apartment. She shares the bedroom with her 4 year old child from the affair, and the only bathroom in the apartment is IN that bedroom.

The boys are 13 and 12. The 13 year old has started personal private 'entertainment', the 12 year old is soon to follow - if he hasn't started already. They have their own privacy in my residence. But they do share a room, until I can have a 4th room built.

The 12 year old is a special needs child. He has anger management issues and abandonment issues.

I have a 3 bedroom, 3 bathroom home in a good neighborhood. I spend every Saturday with them doing something together.

I am in a relationship with someone I am going to marry, when the divorce is final. My girlfriend has a child of her own the same age as my 13 year old, she treats the kids great. She makes sure they have consistency, structure, manners, respect, Chores, responsibilities, she attends their school functions with me, she helps in every way possible to see that we all get what we need.

Recently my boys went to see their mother for two weeks. A week and a half into the visit, I had made a regular call to speak with the boys and they weren't there. When I had asked where they were, she refused to tell me. As a result of her refusing to tell me where the boys were, I picked them up early from the visitation, and the Police were involved.

I decided that since she now wants to have some kind of regular visitation, it would be best for ALL of us to have any kind of agreement in writing. Especially since the last fiasco. The boys were supposed to go to their mom's for two weeks at the beginning of August. I sent her a certified letter stating that all agreements are to be in writing from now on with both of us receiving a copy.

I stipulated that she is to provide transportation both to and from her residence, due to my having provided transportation both ways last visit to her. She called and told our 13 year old that she isn't going to pick them up because I was being unreasonable since she has to provide transportation both ways (on this agreement only) - If you would like to see the agreement I wrote up, I will attach it).

In essence she refused visitation and hasn't called since. Telling our son that she doesn't want visitation that it's not worth it to see them for a short period of time and that she wants custody.

I have NEVER refused her visitation, I told her that she can come get them any-time she wants, and I'll pick them up from her house. But she has to take both boys. I have documentation from school psych evaluations that she states she cannot handle both boys, and that she has called me to come get them early from the very few visitations she has had with them.

I want to do a re-introduction period of visitation. Since she has not been there for the boys, I want to start slow (and she has stated in her court papers that she wants one weekend a month). I want to start with one weekend a month and go to the standard two weekends a month and them something like 1st 3rd and 5th weekends. Holidays will be included.

I have come up with a parenting plan. I would like you to take a look at it and see what you think – but will not post it unless you feel you want to see it.

QUESTIONS

1. What are her chances of getting spousal support – after she has been self-supportive and in a relationship for the entire time we have been separated?

2. What is meant by having the arrears and child support case in/on "Reserve"?

3. What are her chances of getting custody of only one boy?

4. I want to keep Sole Custody, Is that unreasonable given the circumstances?

5. IF I agree to any other custody, should I agree to her having joint custody and my keeping legal?

6. What's the difference between Legal and Joint Custody?

7. How much does her having the 3rd child affect the case?

8. How much does her having a relationship with her cousin affect the case

9. How do I go about obtaining an Arrest record for her cousin/boyfriend – what information do I need?

10. Can I refuse to let the children visit her when the cousin/boyfriend returns from Prison?

11. What information do I need to include in a statement to explain my concerns about her having custody?

12. Would you like to see the Parenting Plan I have come up with?


Thank you very much for your time,

SEB1670

[socrateaser]

>QUESTIONS
>
>1. What are her chances of getting spousal support – after she
>has been self-supportive and in a relationship for the entire
>time we have been separated?

Very low, as long as you have custody.

>
>2. What is meant by having the arrears and child support case
>in/on "Reserve"?

A reserve is a court order reserving jurisdiction to order support at a later date. This is usually done when a support obligor has no income with which to pay support or is receiving public assistance.

>
>3. What are her chances of getting custody of only one boy?

Assuming that your kids are well adjusted and happy in their current environment: zero.

>
>4. I want to keep Sole Custody, Is that unreasonable given the
>circumstances?

Nope, not at all.

>
>5. IF I agree to any other custody, should I agree to her
>having joint custody and my keeping legal?

There's no reason to agree to anything, in my opinion, and I advise that you don't. She will need sigificant funds to launch a custody battle (at least $10K), and if she has that, then you should get a judgment for arrears and execute against that money so as to remove her ability to fight for custody.

>
>6. What's the difference between Legal and Joint Custody?

You are confusing concepts. Legal Custody is the right to make major decisions concerning the child's health, education and welfare. Major means decisions other than day-to-day (i.e., whether to attend private or public school, whether to move to Alaska, whether to get cosmetic surgery or orthodontia, etc.).

Day-to-day, also known as Phyiscal Custody, means deciding what food to eat, clothes to wear, when to wake, when to sleep, etc.).

Joint Custody is the joint right to make decisions concerning the child's health, education and welfare. Joint custody is an undivided interest, which means that both parents have 100% authority, and whenever a decision is made, the last parent to decide wins. In practice this means that the parent with primary custody, i.e., the one who has the child(ren) most of the time, usually wins on every decision, because he/she is able to make the final decision after the other parent has decided something else.

CA presumes joint custody, but you can easily overcome the presumption on your facts, because you have the status quo of the kids being in your custody and control for 6+ years. Thus, sole custody, which means that you have the sole authority to make all decisions regarding both major and day-to-day decisions, is almost certain to be awarded, unless you are proven to have abused the children, or you are routinely engaged in criminal activities that put the children at risk.

Absent those two factors, unless you just don't show up to court, you are not going to have to give up any custody rights, based on your posted facts.

>
>7. How much does her having the 3rd child affect the case?

Irrelevant, unless it's your child.

>
>8. How much does her having a relationship with her cousin
>affect the case

Irrelevant.

>
>9. How do I go about obtaining an Arrest record for her
>cousin/boyfriend – what information do I need?

Police records are generally public. Call the law enforcement authority where the arrest took place and ask for it. If they won't give it to you, you can subpoena it. But, it's likely irrelevant, because you aren't going to need this sort of proof to defend yourself, in my opinion.

>
>10. Can I refuse to let the children visit her when the
>cousin/boyfriend returns from Prison?

If you have sole custody, yes. If you don't and your parenting plan gives her time with the children, then no. However, you are confusing something else here. There is a VERY big difference between an arrest record and a criminal judgment of conviction for a crime. A criminal judgment can be obtained from the courthouse where the case was tried, and in a custody action, is admissible as evidence for any relevant purpose, which in your case would include demonstrating a danger to the children while in the mother's care, and would probably prevent her from exercising any visitation except at your location.

>11. What information do I need to include in a statement to
>explain my concerns about her having custody?

I would explain the situtation to the court as you have done here and ask for temporary order granting you sole custody with supervised visitation at your location, pending a custody evaluation of both parents, which finds that no risk to the children exists from being in the mother's care, and further details a step up plan to increase parenting time slowly.

>
>12. Would you like to see the Parenting Plan I have come up
>with?

Would you like to pay me $400 per hour to look at it?

I STRONGLY urge you to retain an attorney and get your divorce completed. California courts will automatically dismiss a civil action that has laid dormant without any action for more than 5 years, so if this is your situation, then you are not only not divorced, you are not even pending divorce.

You can file for divorce again in your county and force your spouse to deal with the case in your jurisdiction.

I would also ask the court to give you a judgment of arrears against the mother for the $56K and then I would try to execute or garnish her to the maximum extent possible. You need to get this support case out of the hands of DCSS, because they are not helping you, and then deal with it yourself. Your kids are entitled to support going forward and you are basically giving the mother a free ride.

Opinion: All this does, frankly, is provide a continuing message to women everywhere that they will not be held to the same standard as a man with regard to their contributing financially to the support of their minor children.

More opinion: This is bad for all of society, not just for you, personally. It even gives DCSS agency personnel the message that there's no reason to go after a woman support obligor. Most DCSS personnel are women, most have children, and by your not fighting for your money, you give the impression to those people that women shouldn't have to pay, and that causes them to not force the issue with women.

So, get a lawyer and get it done -- for yourself and your kids, and society in general.

[seb1670]

Socrateaser;

I had to chuckle a little at your response to the question of whether you wanted to read my Parenting plan or not... BUT, If I had the money, I'd definately pay for your opinion!!

I do have a few more questions regarding re-introduction visitation;

1. What is the general rule or procedure for re-introducing the children to their mother;

2. What kinds of guidelines are there for visitation for re-introduction?

3. What are the stipulations?

4. HOw long before an increase in visitation time should take place?

5. Where can I find more information on re-introduction?



Thank you again!!

SEB1670

[socrateaser]

>1. What is the general rule or procedure for re-introducing
>the children to their mother;

Weekend visitation for a couple of hours at your home, assuming the mother's not dangerous, or if the relationship is extremely hostile, than supervised by a third party. There are some private companies that provide this service now. You could also retain an off duty sheriff or a therapist, etc.

>2. What kinds of guidelines are there for visitation for
>re-introduction?

It's at the court's discretion and the judge will usually rubber stamp the custody evaluator's recommendations.

>
>3. What are the stipulations?

I don't understand the quesiton.

>
>4. HOw long before an increase in visitation time should take
>place?

It's up to the evaluator. When kids are as old as yours, they will provide their own message about whether they want to spend more time or not, and that info will be given significant weight, because if the kids are dead set against seeing the other parent, then forcing the issue without counseling is a waste of time.

>
>5. Where can I find more information on re-introduction?

Some useful links:

http://www.lasuperiorcourt.org/familylaw/cv-custody_evaluation.htm

http://www.afccnet.org/pdfs/Child_Model_Standards.pdf#search='child%20custody%20evaluations'

http://www.apa.org/practice/childcustody.html

[seb1670]

I asked;

>3. What are the stipulations?

You responded;

I don't understand the quesiton.


I reply...

1. I mean, what stipulations would the court put on her to make sure she  shows up every time, on-time, and what could happen if she doesn't show up every time?

2. If she doesn't show up; how many times is acceptable for her to not show up?  After so many times of no-show, what can the court do?


Thank you Socrateaser!
SEB1670

[socrateaser]

>1. I mean, what stipulations would the court put on her to
>make sure she  shows up every time, on-time, and what could
>happen if she doesn't show up every time?

Ah, ok -- terminology problem. Legally, "Stipulation" means agreements between parties that the court confirms and orders. Courts don't make independent stipulations, they just make findings of fact, conclusions of law, and orders.

Generally, a visiting parent is supposed to show within 15 minutes of the required time or the custodial parent can cancel the visitation. This isn't an inflexible rule, it's just a "reasonable" one, for which the custodial parent can't be found in contempt, because the parent and child were ready and waiting, and 15 minutes is long enough to wait.

If the other parent is coming a great distance, by air, then 15 minutes may not be reasonable any more. But, if you want to have it spelled out, then you should do so in your motion/response to the court, so that the judge knows exactly what you think is reasonable, and the other party can make her case.

As for what can happen if she doesn't show, well, technically it's contempt, but no judge will sanction a party for not showing up, except to find a material change in circumstances concerning the support obligation and thereby increasing the amount of support due.

In your circumstance, the other parent is being treated as if she has zero custody, not showing up will not make her situation worse, financially. And, there's a reserve on her child support obligation, probably because she's receiving public assistance and has no means of paying the support (what a crock o !@#$).

>
>2. If she doesn't show up; how many times is acceptable for
>her to not show up?  After so many times of no-show, what can
>the court do?

I'm wondering why you even care? If she doesn't show, everything will be as it currently is and you will go on with your lives as if she doesn't exist. You could go back and ask the court to order visitation suspended until the other parent explains to the court why she's unable to keep an appointment.

But, I don't know why you'd even waste your energy with another court appearance.

[seb1670]

(edited by moderator to eliminate the vent)

**Stepping off my mad soap-box**

I will defiantely look into ordering visitation suspended if she doesn't show up consistently. I guess the requirement would be her screwing up for 6 months? Either way, I'll wait between 4 and 6 months and if she follows through with visitation, good - if she doesn't I'll start proceedings to suspend visitation... AFter we get this first mess sorted out....

And I'll look into getting a hold of that money she says she's getting for an attorney!

I will look into everything you've suggested - Wish us luck!!

Thanks SO Much Socrateaser!!