Is this enough for 'change in circumstances'?

[dipper]

HI, my dh just went to court in January to try for primary physical - the reason was that his 13 year old wanted to live here.  For various reasons, 13 year old changed tune when he talked to the judge.

We are in debt to ineffective lawyer.  Cannot afford another right now.

Since they went to court, several things have come to light...

1 - the babysitters - bm stated in court she trusted them completely..they worked for her and were a 'couple'.  Since that time, we have found out that both have been fired.  One was arrested in February for grand larceny - something she has a record of.  The other had lied on her application and also has a felony conviction.  Now, we knew that one had lost custody of her own child to a family member months ago, and that she had a past - but this was not represented by dh's lawyer in court.

2 - BM is on her fourth time in court for not paying rent.  She pays it after being ordered to pay extra $300 in fees...but, this time is due to go in March and still hasnt paid January's rent.  

3 - BM worked a part time job here only and still paid her rent - only taken to court three times in three years.  Since she moved two hours away, she has a full time and part time job and has been taken to court four times for rent in eight months.

4 - Since court in January, stepson has been to school 10 days.  One day was an unexcused absence so that his mom could go out of town to visit friends.  Then there are seven suspension days for two different episodes.  He is currently back in school with in-school-suspension.  The school is now deciding between three options:
  a - at home tutoring
  b - he remain in school, but have to sit on front seat on bus, and be isolated from other students when not in class - for example, switching classes he would have to wait until other students had cleared hall ways.
  c - alternative school for troublemakers.
 
5 - Stepson spends suspsension at toy store with mother in the mall.  Also, when she is working late, he is wherever she is (now).  No more babysitters.  

Is any of this enough to file for a change in custody pro se and have any chance of winning?

[TwoBoys]

I would say of the things you listed:

1.  The babysitters: having left the child in the care of people who are unfit to care for a child - if you have proof that one was arrested in feb for grand larceny, and her record of such behavior. and if you have proof of the other has a felony conviction, and any proof of her past and having lost custody of their own child as you mentioned.  Without documentation of all of this, itll be considered heresay, and of course BM will deny it.  Dig up the proof (background checks whatever), and gather that, and yes, this is definitely enough I would say.  

2.  Rent - a case for instability - but show proof

3.  School - I would show that hes missing school unnecessarily and that the instability in his life created by BM is seriously affecting his school (hence hte suspensions).  Get proof from the school of both the unexcused absense (and any others that have occured since then) and the suspensions.

4.  Spending suspension at the toy store - probably not going to affect things one way or another.  Since she has no more babysitters, i would say shell try to use this as a "ive seen the error of my ways and im now protecting my son" but i would just say that she has shown a continuous inability to properly care for her child, find reliable care, and that not being able to be in a place where he can properly do homework is affecting his school.  Does he make good grades?  Maybe get something from the school on his homework habits?  (If hes turning it in, etc).

I would say yes.  However, first pull up the statutes for your state.  Typically they will list what issues are considered in a determination of custody.  Or - you can try to get a free consultation (or cheap one) with a local attorney and ask him yourself what issues are raised when determining custody.

Good luck,
TwoBoys...

[Brent]

1) Nope, probably not.

2) Definitely not, unless this results in them living on the street, and maybe not even then.

3) Nope.

4) Possibly, but it's a stretch.

[Lawmoe]

Given the fact that you are fresh off a previous motion to change custody that was not successful, the court will be extremely relucatnt to change custody based on another new motion without very strong facts.

1 - The babysitter's backgrounds are largely irrelevant. You do not indicate that their conduct in any way endangerd the children.  In short, there is little in your post to believe this is a significant issue.

2 - Once again, you are concentrating on the wrong thing. Custody changes are made based on what is best for children. Where is the correlation between court appearances for unpaid rent and the children's care? she has not been evicted or moved frequently which then affected the children's psychologically or by harming the ocialization. Their grades haven't dropped because of the housing issue. Those are the effets that are needed to make a case.  The Court will not simply speculate that because mom does not pay teh rent on time the children are affected. There must be some proof.

3 - Same answer as above.

4 - This could be a significant issue. However, you now are looking at an effect that has no cause. Why are thesee suspensions happening? How is related to the mother's care?

5 - How is this an issue at all? Many parent's bring children to work when they cannot afrford a babysitter.

The likelihood of prevailing on a custody motion based on the facts presented is slim.

[CustodyIQ]

Of what you outlined, the only relevant issue is what's going on at school.

However, identifying a problem isn't enough.  You'll have to lay out that mom is the primary contributor/cause of the school problems, that she is doing nothing to address the problems, and that it is to the child's extreme detriment to remain under the influence of mom's contribution to the school problems.

Evidence that would be very helpful would be affadavits/testimony from school teachers/administrators, school records, possibly affadavits from classmates' parents.

You may end up having to involve an evaluator who can help provide insight to the court as to the roots of the child's issues.  This may cost several thousand dollars.

You'll also need to demonstrate your plan for rectifying the situation and through convincing argument and evidence persuade a judge that mom lacks the ability to improve child's school problems and that your home can do it.

All of that said, if these problems existed prior to January, your shot is slim to none.

However, if all this cropped up after January, I think you have a reasonable shot at showing change of circumstance, if you do it properly.

As to all the other issues you outlined... blah blah blah.  She's not mother-of-the-year, we all know, as does the court.  But you have to talk in terms of tangible damage to the child, not an approach that mom's style is a tad chaotic.

[dipper]

HI and thank you all for your replies.

The reason I thought the unpaid rents were important - judge deemed her move was reasonable financially as she improved her job status.  However, obviously that was not true when she was having more trouble financially.

The babysitters - they obviously were not good moral characters and bm stated in court that she trusted them completely.  It was after court that we found she had already fired one, though still had her babysitting.  This is the one that gave yss presents all the time, lost her own child, and was arrested in Feb..and already had a long list of legal problems.  The other was fired after court for lying about felony convictions.  The other guy - the 26 year old that was calling yss all the time, had spent the night with him:  yss had told oss in January that this guy smoked pot.  The guy was fired for dealing drugs after trial.  YSS has a past of stealing, he is very vulnerable and he thought hanging out with the 30'ish and 20 year olds was cool.

Okay, about the school situation.  DH received a letter from one meeting outlining it.  The letter stated that bm was asked about counseling and stated that she would not reconsider it.  She had stated that she had yss an appt. for consideration of meds (he is adhd) but that wasnt even true.  The next meeting, my dh went to - and the decision had been made, he could either do homebound or go to another school.  He can not attend any regular school in the state of VA.  The school he is going to is for learning disabled children with emotional/social troubles.  It provides counseling on-site for individuals and group, and in home.  He will be in a class of 10 with 2 teachers.  He will not switch classes as most teens do.  They search the students coming in and leaving in the evening.  

BM's job ended as they closed her store.  She is now working with a cousin part-time and waitressing full-time.  While she works with her cousin, yss is left home.  For the other, she takes him.  Saturday he was at the restaurant for over 12 hours.  And at age 13, he is working there bussing tables and washing dishes.  He may learn responsibility, but he is also in an environment with drinking and smoking.  His last visit here, he had brought cigarettes which had been opened with some missing - and he had a burn on his finger which he admitted he got from a lighter.  He said he got the cigs at the restaurant.

Yesterday, he was left home alone and instructed to be there at noon.  He wasnt.  The tutor came and left.  BM called the police to find him.  He got home at 1:30  - had walked to the mall with a friend.

I know one can make a case that she has no sitter so she takes him to work.  But, he is 13.  And she stated in court that her mom keeps him most of the time, in fact her mom has kept him two days in nine months.  Also, he is adhd and learning disabled and instead of getting rest at home, he is not even getting home until late.

For right now, we are hoping this other school will help.  BM is very good at presenting herself as the devoted parent and blaming dh for everything.  She was doing this with the first counselor that was snowed by her.  The counselor thought bm was so devoted to the cause while bm was fussing the entire time behind her back.  

Well, anyway, right now yss has to go to this other school.  He cannot go to school here, so our hands are tied.  Plus, if he still wants to live there - which is the only reason the judge ruled that way in January as that is the reason for the hearing - there really is no need to try to go to court.