Custody Modification

[uncle_baby19]

This is a long story.

My 6 year old son lived with his mother from his birth in May 2002 until he was 3.  She had sole physical and legal custody and I had visitation.  She had a history of canceling my visits and withholding pertinent health information regarding our son.  She was able to prolong the process of me being granted overnight visitation by emphasizing our son's health problems (asthma, seizures, and developmental delays, underweight). I was finally granted overnight visitation in Jan 2004 when he was 19 months old.

In June 2005, I returned my son to my ex at the end of my Thursday weekday visit.  She then told me that she was getting married on Saturday and moving to NJ.  I was shocked.  She called me later that night and provided me with her new home and work addresses and phone numbers and told me that she would try to bring him to visit me once a month.  I filed for a custody modification the next day. Five months later we went to court. (I hadn't seen my son during this time because she was pissed about my modification request). My wife had Googled the new husband and found out that he was a registered sex offender and my attorney presented evidence about his conviction at the hearing.  I was granted sole physical and legal custody and she was granted visitation that was to be supervised if her husband would be present due to the fact that he was a registered sex offender who had served 8 of a 12 year sentence and had been released 9 months before she married him (adult female victim). The judge said that his decision was based on her moving without my approval and with short notice, all of my son's extended family on both sides lived in MD and also the fact that my ex showed poor judgment by marrying a felon who she claimed to not know was a sex offender.   She filed a motion to reconsider and hear new evidence, 9 months later, judge heard new evidence but I kept custody and her visits remained supervised.  She appealed the supervision stipulation and won.  Appellate court ruled that there was no evidence that new husband was a threat to my son.  Appellate decision came in May 2007.  September 2007 my ex filed for a modification.  She lists the change in circumstances as

1.  She has returned to MD
2.  The appellate court ruled that her husband was not a threat
3.  My wife and I have "celebrated in the birth of a new child who has    special needs and through no fault of their own do not have time to  adequately care for the minor child"  (all she knows is that my youngest daughter spent 2 weeks in the  NICU after birth.  She is actually healthy and perfectly normal!)
4. The minor child is severely underweight and failing to thrive."  (my son has been in the 3rd percentile all of his life and was diagnosed by an endocrinologist with a constitutional growth delay.)
5.  "The minor child suffers from severe separation anxiety upon returning to the Defendant's home. (he used to cry at the end of her visits in the beginning, but that was only for the first few visits and even then I wouldn't call it "severe separation anxiety.)
6.  "The minor child suffers from developmental delays, seizures and asthma." (Duh, that was your excuse for denying me overnight visits for the first 19 months of his life!)
7.  "The father has attempted to alienate the mother by allowing the minor child to refer to his wife as Mommy"

Her visitation is only ordered for once a month, but I have allowed her EOW ever since she moved back to MD, I have kept her informed about doctor's appointments and school conferences/functions even though it is not mentioned in our court order.  My son has been with me going on 3 years now, he is about to finish kindergarten and has caught up in reference to his delays so much that he no longer qualifies for Special Education services.  His health is stable and although he is small for his age (43 inches tall and 35lbs) He is proportional and has been slowly but surely gaining. He was 24 lbs and 36 inches tall when he came live with me at age 3.

What are her chances of regaining custody?  He is very comfortable in my home with my wife and two sisters (4 yrs and 18 months). Would any of the things she listed constitute a change in custody?
 As for calling my wife Mommy; this is not something that either I or my wife encouraged. During the first year that my son lived with me, he only saw his mother like 5 or six times, often with large gaps in between visits and I think he started calling her Mommy because his sister was saying it all the time. At a doctor's appointment after my son hadn't seen my ex for 3 months, he called my wife Mommy and his mother by her first name.  When my ex expressed her displeasure and my wife and I sat down with my son that night and gently asked him about who his Mommy is and he understands clearly that my ex is his Mommy and my wife is his sisters' mommy. I instructed him not to call his mother by her first name,  but when my wife suggested that he call her by her nickname (like he did before he came to live with us) he started crying and asking her why, and we told him so that he didn't hurt his Mommy's feelings. He said ok and I e-mailed my ex about the conversation.  My son never stopped calling my wife Mommy, but he never does it in front of his Mother.

It just makes me sick to my stomach to think that I may lose my son after all this time when nothing has changed with my living situation except for the better. (Since being awarded custody, I have graduated from college, had a large pay increase and now own my own home.)  Will the judge consider my son's relationship with his sister?  They are only 1 year apart and they have an almost symbiotic relationship.

Thank You

[4honor]

In order to get a change in custody, she will need to prove a SIGNIFICANT change in the circumstances of the child or you that is detrimental to the child.

Point by point:

1. Change in her curcumstances, doesn't meet threshold.
2. Change in SF circumstances, not in the child's.
3. Change in your circumstances, unsubstantiated and not necessarily detrimental to child.
4. This is not a change in the child's circumstances and is not a detriment (if Dr. thought he was not thriving in your care he would have mandatorly reported to CPS on it already.)
5. Unless the ex is a psychologist, she has no standing for this. Judges hear this all day long every day.
6. Not a CHANGE IN CIRCUMSTANCES of the child.
7. Child is 6. And you "allow" him to call the full time woman in the household -- the mother of his siblings, Mommy? Judge will likely laugh in her face if she could get to court.

Stop freaking.

Judge is going to look at her laundry list and maybe up her parenting time to "standard."

[ocean]

Bring documentation....

Dr letter stating that he is fine-weight wise and always had issues since birth and no fault from you.

School-Bring the CSE meeting paperwork that has him being dropped from services due to his growth and he is now on-level.

Siblings- Yes, he has known his siblings from birth. Your child has no issue but I would bring documentation that your child does not have significant delays.

Good luck!

[uncle_baby19]

Went to court yesterday...

The custody evaluation report was filed at the end of last week. I was able to see it, but wasn't allowed to get a copy. Basically, my ex's portion was 4 pages of bashing me. That being said, the evaluator reccommended that I retain sole legal and physical custody and that all 4 parents (me, my ex, and our spouses) take a co-parenting class ( not all together, but each couple separately).

My ex and her attorney objected the report because:

1. the evaluator did not observe our son in my home ( he is with her for summer visitation until next week)

2. the evaluator did not interview my son's doctors or teachers

3. the evaluator did not interview any family members outside of the two homes

As for number 1, I asked my ex if my son could come to my house for the home visit, but she no. I guess she thought it would help her if the evaluator could see him interacting with her without seeing him with me.

Number 2 surprised me because I provided the evaluator with a list of all doctors and teachers with telephone numbers. She specifically asked for this info and I assumed she would contact them and I was happy that she would hear from someone other than me that my son is doing well. She did see his report card and school awards at my home. I offered his medical records and she said that she had seen and spoken with my son and that while he was smaller than the average 6 year old, he did not appear to be unhealthy or malnourished.

With number 3, I don't see why that matters because any of my family is going to bash her and praise me and her family will do the same to me.

At any rate... the judge told the attorneys "for the sake of appeal" to draft an order for the evaluator to observe my son in my home, interview the primary physician and his teachers from last year and conduct any other additional interviews as deemed necessary and to submit it to him for signature within 30 days. So it continues...

Also would it be inappropriate to contact the evaluator and tell her that additional interviews and another home visit need to be done? I was just thinking that if it can take up to 30 days for the order to be signed that she may want to go ahead and get it over with. Not that she would take my word for it, but she would at least know to call someone at the courthouse to find out. I just want this over and done with before school starts. I know that we won't be back in court before then, but at least the interviews and home visit can be over with.