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Joint Physical and Legal Custody

Started by dadof4, Jan 28, 2007, 04:35:26 PM

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dadof4

Dear Socrateaser,

I am a divorced dad with two kids involved in Idaho.  My divorce was back in 1998 and the decree says we have joint legal and joint physical custody, her having primary physical custody.

About two years ago my ex moved about 500 miles away, but still in Idaho, giving me one weeks notice.  I was upset but thought it might be good for my kids.  

They've lived with my ex's mother most of their lives (my ex was in jail and wouldn't allow them to live with me and, honestly, my living situation wouldn't have been good for them at that time, not enough space).

My youngest son, age 11, has a cosmetic deformity on his genitalia that has been there since birth.  I have entreated my ex thousands of times over the years to take care of it (it's an in office surgery and my son is on Medicaid) with no results.

My oldest son, age 13, has wet the bed since he's been potty trained and my ex refuses to take him to a doctor to see if it's something that can be helped or what the problem is in the first place.

Then, this past Christmas my 11 year old informed me that his mom and stepdad had gotten him a .22 rifle and a pistol for Christmas.  I was furious because I was never told about it and my ex still won't talk about it.  Also, it is illegal in Idaho for a minor under age 12 to own a gun, plus, my son hasn't even taken Hunter Safety or anything similar.

The time I have with my sons is so short that doctor's visits are out of the question since I usually only get them for holidays.  My ex will tell me, and them, they can stay for a certain amount of time, then change her mind.

Also, my ex won't let me keep them all summer, she usually says they can and then arrives out of no where and picks them up sometimes 3 weeks early.  The divorce decree says I get them on Mondays.

Furthermore, yes there's more, even though I have asked hundreds of thousands of times, she will not send me copies of report cards, reports of parent teacher conferences or even to sign a release to ask the school to send them directly to me.

The last thing, and this disturbs me the most, last summer my sons were visiting and my wife went to get on our computer and my oldest son had left an email from his mother up that talked about how he needs to stop looking at porn and if he needs to he could ask his stepdad for some magazines.  When I asked her about it she said that it wasn't serious and that she had "only" caught him typing in the word "boobs" to search it.

After yet another fight with her I have decided that I want to take her back to court to get the divorce decree modified. I haven't flat out asked my boys if they want to live with me so I'm not sure if they do or not.

Questions:
1) Would it be wise to try to get primary physical custody of my boys?

2)If not, what are my rights in this situation as far as visitation for summer months and holidays with the 500 miles between us?




socrateaser

>Questions:
>1) Would it be wise to try to get primary physical custody of
>my boys?

Changing custody requires that you show some clear and convincing change in circumstances affecting the child(ren)'s best interests. I'm not seeing anything like that from your stated facts.

Except for the bed wetting. For a male, this is unusual at 13, and suggets a fair amount of distress. But, getting the court to change custody based on this is still very dicey. What I would suggest is that you file a motion to clarify and raise all of the various issues with the idea that the court may put them all together and wonder if there's something worth appointing a minor's representative (GAL) to investigate and report back. And, if the report comes back that something more significant is wrong, then maybe you'd have a shot at custody.

>2)If not, what are my rights in this situation as far as
>visitation for summer months and holidays with the 500 miles
>between us?

All of this is covered by your current orders, which you haven't stated. If you want me to tell you what your rights are, you need to post the EXACT text of your custody/parenting orders.

If you don't have anything more than joint legal and physical with mother as primary, stated in your orders, which would be exceedingly strange, then that means that the other parent cannot stop you from seeing the kids whenever you want and for as long as you want, and it's completely undetermined as to when you have to return them, except for the obvious non-interference during school.

So, tell me what's really going on in your order, and maybe I'll have more answers. At the moment, I'm still mostly in the dark.

dadof4

Sorry, my first post was extemely long, but the decree states, "The parties agree that they should be awarded joint legal and joint physical custody of all of the above-named minor children of the parties.  Defendant will have primary physical custody of the minor children of the parties, subject to reasonable visitation rights in Defendant.  While Plaintiff is employed at his current employment, visitation will take place every Monday, which coincides with his day off, provided proper advance notice is given."  

The decree was done when we lived in the same town and my boys were pretty little and the it hasn't been modified since.  I no longer work at the job mentioned and work Monday through Friday now.

That is the only mention of visitation, I actually got into a dispute with the lawyer who represented me for his lack of doing his job in that department but he refused to fix it for free.  See, it was put in at the last second and he told me when I signed it that it was just a correction in clerical errors.

The fact of the matter is that my ex tries to be the boys' friend and not their mother, she lets them do whatever they want. No bedtime, no set homework time, they don't even have to come home for dinner if they don't want to.  

Questions:

1)So, the fact the my ex and her husband bought my youngest son guns that he can't legally have, along side the fact that neither of them has shown him how to use them safely, doesn't mean anything?

2)Because of how far away they live now, can my ex try to have the joint physical custody changed?

3)If my boys want to live with me, does that make a difference in Idaho?

4)Does the fact that my ex and her husband work all the time, leaving the kids home alone at night, along with the fact that my wife doesn't work and I am home by 5:00 every night matter at all?

5)What about the porn issue with my oldest?

6)(Last question) Does her chronic lying to myself and the kids about how long they can stay with me have any weight at all?

socrateaser

>Questions:
>
>1)So, the fact the my ex and her husband bought my youngest
>son guns that he can't legally have, along side the fact that
>neither of them has shown him how to use them safely, doesn't
>mean anything?

I don't know the Idaho law on this subject. You say that the kids can't own a firearm. Does that mean that the parents can't own the guns and let the kids use them? What I'm getting at is how do you intend to prove that the guns are "owned" by the kids, unless the kids filled out the federal check form. If they did, then you hae some good evidence of an affirmative act against the children's interest. If you don't, you have a he-said she-said argument that you'll ultmiately waste lots of time on and never win.

>
>2)Because of how far away they live now, can my ex try to have
>the joint physical custody changed?

Sure, but the court won't change things because there's no need. The way your current orders are written, you have nearly no practical access to the kids without the mom's consent. You need it changed in your favor -- it's alrady as favorable to the mom as it could reasonably be.

In fact, its probably invalid because it's contradictory, but I don't really want to get into that issue at the moment.

>
>3)If my boys want to live with me, does that make a difference
>in Idaho?

Yes, the court will give it weight, however, it's not dispositive.

>
>4)Does the fact that my ex and her husband work all the time,
>leaving the kids home alone at night, along with the fact that
>my wife doesn't work and I am home by 5:00 every night matter
>at all?

No.

>
>5)What about the porn issue with my oldest?

Easy. Put a firewall on the computer and block access. But, let's get real. Every boy (and every man) looks at porn, and theres not getting around it.

>6)(Last question) Does her chronic lying to myself and the
>kids about how long they can stay with me have any weight at
>all?

Sure. Now all you need to do is prove it.

The point is you need evidence, and the stuff you're raising, except for maybe the gun issue, doesn't have any objective supporting evidence. It's just your word against the mom's.

Your best case is to have a GAL appointed and a psychologist to determine if the kids would be better off with Dad as they mature, and even then, to start with, you need the boys to want to live with you and get away from their exisitng social circles. That's the first thing you need to determine. Otherwise you will really be wasting your time.