How to change custody order

[Mamacass]

My husband and I have through the VA courts visitation rights of his son.   Unfortunately when his ex-wife got custody it was under the premise that she was worried we would take son away from her, so DH ignorantly agreed to her request to give her custody through the courts.  

Since that order 5 years ago, BM has gone back and forth between feeling the child should spend half his time with DH and telling DH he is a weekend dad.  She also in May of 2003, and May of 2004 told us she was going to sign over custody and give her visitation rights to her parents, but then would call back after a few days to take back her
offer.  Each time ended up in increasing the time that son was scheduled to be with us each month.  In May 2004, she signed (and we had notarized) a two weeks here/ two wks there agreement, that also stated there would be no child support paid by either party.

DH and I have tried to be understanding and work with BM as much as possible for the sake of the child.  DH was raised by his mother and knows the importance of the relationship a child has with his mother.  We have allowed the child to be enrolled at school in the town BM lives, and now have child 3 weekends and 1 week of each month.  However we have recently asked for her to allow the child to live with us as we feel that we have a better environment and more stability to offer the child.

BM has a mental illness that she must take medication for. One of the side offects of the medication is memory loss; In the last month she has "forgotten" 3 conversations with us.  One of these conversations was about changing the times son would switch houses.  Also because of her illness, the child lived with us 9/04-2/05 and spent 2 wknds each month w/ BM because she was in and out of the hospital.

We have mentioned her smoking in the house, and the child has asked her not to smoke in the house.  DH is a smoker, so we aren't asking BM to quit.  We are simply asking that she not smoke in the house b/c child has allergies that seem to flare up only when he is at her house.

BM has also been married twice in two years and each time we are notified when son comes over and announces he has a new dad.  We are not sure when the first marriage ended as it was during the fall of 2004 when child was with us.  However he was very confused as to why his stepfather and stepsister weren't around anymore.  He now asks us how many fathers he has, since his mother encourages him to call his stepfathers Dad.  

The child has been having behavioral problems at school, which only occur when he is at his mothers house.  The last time, BM asked DH if he will discipline child next time he gets in trouble.  She said she feels the DH is better at it than she is.

Also although we don't pay child support, we provide health insurance.  We also provide the coats and shoes, an most of the clothes the child wears.  we are often buying new clothes to send the child to her house in as he comes over in clothes that are 2 sizes too big or 2 sizes too small.  

We have talked with BM about going to a therapist to discuss the situation, as she feels the communication between our houses is poor.  We feel a therapist would be better in our situation than a mediator, because of her mental illness.  It seems whenever we suggest changes at her house, or ask about any events (such as marriages or moves or hospital visits) she thinks we are attacking her.  We are only trying to help the child understand the changes in his life.

DH and I have been together for 5 years, we own our own home and we have a child together, and another on the way.  We can provide the stablity that this child needs so badly.  However we can't afford an attorney to fight this battle. so here's my questions:

1. What are our options for gaining full custody with out paying for a lawyer
1 b. Can we ask for her to apy attorney fees if we go to court
2. what are our chances for gaining custody if we don't employ a lawyer.
3. is there a way to force her to go to mediation or therapy visits?

[socrateaser]

>My husband and I have through the VA courts visitation rights
>of his son.   Unfortunately when his ex-wife got custody it
>was under the premise that she was worried we would take son
>away from her, so DH ignorantly agreed to her request to give
>her custody through the courts.  
>
>Since that order 5 years ago, BM has gone back and forth
>between feeling the child should spend half his time with DH
>and telling DH he is a weekend dad.  She also in May of 2003,
>and May of 2004 told us she was going to sign over custody and
>give her visitation rights to her parents, but then would call
>back after a few days to take back her
>offer.  Each time ended up in increasing the time that son was
>scheduled to be with us each month.  In May 2004, she signed
>(and we had notarized) a two weeks here/ two wks there
>agreement, that also stated there would be no child support
>paid by either party.
>
>DH and I have tried to be understanding and work with BM as
>much as possible for the sake of the child.  DH was raised by
>his mother and knows the importance of the relationship a
>child has with his mother.  We have allowed the child to be
>enrolled at school in the town BM lives, and now have child 3
>weekends and 1 week of each month.  However we have recently
>asked for her to allow the child to live with us as we feel
>that we have a better environment and more stability to offer
>the child.
>
>BM has a mental illness that she must take medication for. One
>of the side offects of the medication is memory loss; In the
>last month she has "forgotten" 3 conversations with us.  One
>of these conversations was about changing the times son would
>switch houses.  Also because of her illness, the child lived
>with us 9/04-2/05 and spent 2 wknds each month w/ BM because
>she was in and out of the hospital.
>
>We have mentioned her smoking in the house, and the child has
>asked her not to smoke in the house.  DH is a smoker, so we
>aren't asking BM to quit.  We are simply asking that she not
>smoke in the house b/c child has allergies that seem to flare
>up only when he is at her house.
>
>BM has also been married twice in two years and each time we
>are notified when son comes over and announces he has a new
>dad.  We are not sure when the first marriage ended as it was
>during the fall of 2004 when child was with us.  However he
>was very confused as to why his stepfather and stepsister
>weren't around anymore.  He now asks us how many fathers he
>has, since his mother encourages him to call his stepfathers
>Dad.  
>
>The child has been having behavioral problems at school, which
>only occur when he is at his mothers house.  The last time, BM
>asked DH if he will discipline child next time he gets in
>trouble.  She said she feels the DH is better at it than she
>is.
>
>Also although we don't pay child support, we provide health
>insurance.  We also provide the coats and shoes, an most of
>the clothes the child wears.  we are often buying new clothes
>to send the child to her house in as he comes over in clothes
>that are 2 sizes too big or 2 sizes too small.  
>
>We have talked with BM about going to a therapist to discuss
>the situation, as she feels the communication between our
>houses is poor.  We feel a therapist would be better in our
>situation than a mediator, because of her mental illness.  It
>seems whenever we suggest changes at her house, or ask about
>any events (such as marriages or moves or hospital visits) she
>thinks we are attacking her.  We are only trying to help the
>child understand the changes in his life.
>
>DH and I have been together for 5 years, we own our own home
>and we have a child together, and another on the way.  We can
>provide the stablity that this child needs so badly.  However
>we can't afford an attorney to fight this battle. so here's my
>questions:
>
>1. What are our options for gaining full custody with out
>paying for a lawyer.

There are only two options: represent yourself or retain a lawyer. Reversing custody requires clear and convincing proof that the other parent is affirmativel acting against the child(ren)'s best interests. Even if the mother is mentally ill, the question is how is this actually affecting the child(ren)? That's all the court is interested in.

Smoking is a big deal, unless you happen to have a judge who smokes (and many do). But, you can't know whether that's the case, so it's not really a factor to consider before going to court. Based on what you've told me, you may have some evidence that the mother is mentally unstable, but you haven't convinced me that she is so ill that she can't care for the children.

You could go to court and ask that the court order the mother to not smoke in the home, but then just try to enforce that order. How do you prove it's happening? Answer: until the child(ren) are old enough to testify to it in court and be believed, you can't prove it so the order is a waste of time and money.

You may simply want to keep your door open to the other parent and tell her that the child can come stay with you whenever the mother or child requires. Then when it gets to the point where you have more than 50% of the month, THEN go to court and ask for primary custody, on grounds that the status quo has changed and that you are actually exercising primary custody. That's the least costly route. But, you need to be doing this for three consecutive months before you ask for the change or the court may view it as a temporary abberation.


>1 b. Can we ask for her to apy attorney fees if we go to
>court

Sure, but you'll have to pay the attorney up front, and hope to get reimbursement at the end. And if the other parent actually loses custody in court, I can practically guarantee that she will have a total mental collapse and be unable to work, and then you'll get no attorney fees, because the other parent won't have any money.

>2. what are our chances for gaining custody if we don't employ
>a lawyer.

I don't read tea leaves, but most people cannot represent themselves in court, so unless the other parent is arrested for child abuse, you'll probably get nowhere on your own.

>3. is there a way to force her to go to mediation or therapy
>visits?

Prove, clearly and convincingly that her illness is affirmative harming the child's best interests. I'm not seeing that in your statements here at the moment, so I don't think you're there yet. You can always consult with a lawyer and see what he/she thinks of your chances after examining all of the facts.

[Mamacass]

Also, BM has only given us limited info. about her illness.  We only seem to hear about her hospital stays when she can't cover them up by sending son to her parents house.  We have asked that son stay with us when she can't care for him, but she continually brings son to her parents house instead where he must sleep on the couch.  She actually told us once that he would me more comfortable there than with us.

1.can we request a copy of her medical records?
2. We don't currently have First Right of Refusal, is that fairly easy to file for?

[socrateaser]

>1.can we request a copy of her medical records?

If her illness is relevant to her ability to effectively care for the child on a daily basis, then yes, otherwise no.

>2. We don't currently have First Right of Refusal, is that
>fairly easy to file for?

It depends on the jurisdiction and the judge. You can certainly ask, and the court will consider whether this modification is substantial or de minimis, considering the circumstances of the case.