custodial father divorcing stepmom, wants child to live with stepmom

[silverbullet]

I am noncustodial mom, every other weekend, with mid week visitation with my 13 year old daughter.

Her father has moved out of state, and is residing almost 5 hours from her residence. He has left her with her stepmother. I live less than an hour away in another state as well.

Court order states that Custodial parent must give 30 day notice if he moves.  If the move is contested, child can't be removed from state.
I am contesting, filing a motion for a change of custody since he wants my daughter to be allowed to live her stepmother.

I don't agree with this, and since August of 2006, she has been living with her stepmother and half siblings without her father present. She visits me every other weekend, and him every other weekend.  We both reside in different states than stepmother.

At this point, she's not living with EITHER parent! He claims that this arrangement is best since her half siblings will be staying with stepmom and he doesn't want to split the kids up. I am ok with not splitting up the children, but I believe that he should take full custody of all the children if he wants to keep them together.

My personal desire is to have my daughter back with me, but in the interest of her own welfare, just her having a parent is the most important thing to me.  She resides in Illinois.  I am in Missouri, and father is in Indiana.  My lawyer has sent papers to the court for modification of custody, but his lawyer keeps delaying by filing motions to dismiss.

What, if any, chance is there of step-mother being allowed to have custody of my daughter?

Thank you for your time.

[socrateaser]

>What, if any, chance is there of step-mother being allowed to
>have custody of my daughter?

I don't read tea leaves, and you're asking me to make an extremely complex decision based on nothing but the locations of the parties. Anyway, this would be my approach:

You have a fundamental right to the custody of your child, as does your ex. He has delegated his present custodial rights to his spouse whom your ex is divorcing (I assume the divorce petition is actually filed in court). This is clearly a substantial change in circumstances affecting the child's best interests, because not having either parent present and leaving the child to someone who will after divorce, be a legal stranger to the child, is the practical equivalent of abandonment.

The next issue is whether or not the step-parent is filing for custody. If not, then there's little to discuss. Your fundamental right trumps the step-mom's rights as a legal stranger, and the father has demonstrably abandoned the child. Therefore, you win.

If the step-parent files to intervene in the dispute, then things get much more murky. The rule requires that the stepparent show why granting you custody would not be in the child's best interests. Obviously, the answer is that the child will be removed from the home she knows and the siblings she is familiar with. The court will order a custody eval, and more than likely will award the stepparent guardianship of the child, and order BOTH you and your ex to pay child support to the guardian.

The only way around this would be for you to show that the child is in distress in the current home, which apparently isn't the case, as the child has been there in the status quo for nearly 6 months.

What's sad about this situation, is that you will get into court with your ex, and the judge will hear the facts, and he/she'll say: "The only way that I can possibly maintain the status quo is if the stepparent moves to intervene, or files a petition for guardianship." At which point, your ex's attorney may request a continuance in order to try to get the stepparent to agree to intervene. If she agrees, then you're in trouble. If she doesn't, then I don't see what legal theory the court would use to deprive you of custody.

However, this is family court, and frequently, judges just make up stuff and challenge the litigants to appeal if they don't like it. So, I make no promises.