Is it time to file for custody?

[adadwhocares]

Hello,

I just found the forum and so far it is great. Thank you everyone for the great advice. I am so much more informed now that I have found deltabravo.net.

I am considering filing for custody of my 2 children. They are experienceing alot of problems at home and I wanted to get some advic from the pros before consultng with my atty.

Here are the facts.

BM has moved 7 times in 6 years.

Bm has been remarried and now is divorcing because of domestic violence within this 6 years.

Bm has had several jobs and currently is unemployed in last 6 years.

There is significant evidence of parental alienation syndrome.

One child has attended 4 schools and is in 3rd grade the other 3.

One child had already been held back one year in school due to moving.

Both children are currently failing 3rd grade due to lack of assignments and projects being turned in and a failure to be at school.

Both children have missed over 20 days of school last year and already 10 plus this year.

Children complain of neglect.... no clean clothes so they do not wear socks or underwear to my home since they have none and not being fed properly.  I believe that they have told this to the school counselor.

Bm has been accused of drug abuse but this is hearsay... can we request a drug test?

Any information would be greatly appreciated.

Adadwhocares

[JayC]

Changing custody is far more complicated than initial custody determinations. You have a greater burden of proof. I will address each of the points you bring up and fill you in on what to look for.

BM has moved 7 times in 6 years.

Not really that big of a deal to a judge in a custody modification. In most states it isn't enough alone to warrant a hearing.

Bm has been remarried and now is divorcing because of domestic violence within this 6 years.

Only if the children have been physically abused. But, it works in your ex's (as well as the children's) favor to be divorcing.

Bm has had several jobs and currently is unemployed in last 6 years.

Ex could be sitting home eating bon bons all her life and it still wouldn't be much of a factor in a custody hearing, much less a custody modification.

There is significant evidence of parental alienation syndrome.

This is hard to prove without extensive study and counseling, along with evaluations, etc. Lots of $$$ involved in trying to prove this. I posted a recent case on the Father's Issues board. Read it and you can decipher as it relates to your own situation.
http://www.deltabravo.net/dc/dcboard.php?az=show_mesg&forum=100&topic_id=192&mesg_id=192&page=

One child has attended 4 schools and is in 3rd grade the other 3.

Not a big issue to the courts.

One child had already been held back one year in school due to moving.

Can you prove it's because of the moving? It still wouldn't amount to much.

Both children are currently failing 3rd grade due to lack of assignments and projects being turned in and a failure to be at school.

The judge will ask you to demonstrate how you somehow are not accountable to some degree.

Both children have missed over 20 days of school last year and already 10 plus this year.

Not a whole lot here. Much of your evidence addresses children and school. Have you done anything and everything (and can prove it) you can to see that the educational needs are met? Are you involved at the children's school?

Children complain of neglect.... no clean clothes so they do not wear socks or underwear to my home since they have none and not being fed properly. I believe that they have told this to the school counselor.

If the school counselor feels they are neglected, it is their duty to report this to the Dept. of Human Services. You can contact your local DHS and find out if there are any reports concerning your children. A founded/confimed report would be basis for a custody modification hearing. You would then have to prove you would provide superior care to that of your ex.

Bm has been accused of drug abuse but this is hearsay... can we request a drug test?

In short, you can request, but it may fall on deaf ears. Were your ex arrested for drug possession, then maybe a judge would order a drug test. Bad thing is her attorney could stall the testing until such time that it is clean, and then you'd have zero good evidence. You'd be better off hiring a private investigator to find some hard proof.

As I stated, custody modifications are harder to obtain than initial custody. What you have is some evidence conjunctively that could help you, but nothing really that would prove to a judge your ex is an unfit parent. Then too, you have a burden to prove how you are the superior parent. Not saying that you aren't, but it's the same thing a judge will look for, above and beyond every spec of dirt you can find on your ex.

Good Luck and keep reading. You'll find other helpful ideas you could probably relate to your own situation.

[mom4good]

I don't agree with the previous respose at all. The fact is that if it were only one of these issues, it may fall on the deaf ears of the court, however, these accusations are BIG and NUMEROUS when it comes to providing stability for the children. I think that it depends on how much you are involved in the childrens lives and what you have to offer as far as a stable home. Have you been at your current emplyer for several years, at the same residence, married? I hope if you do file that you have these factors on your side, b/c otherwise the judge would feel as though the pot is calling the kettle black. Judges will not look at what you promise to do/change in order to get your kids, but what you have always done...stability.
I would also call the school counselor. If you have joint custody, they have to speak with you. You can also request the the counselor speak with your children about the concerns. Good luck, I hope that the children are soon in a more stable environment.

[adadwhocares]

I agree with all of your points. If they were simply a sigular concern. However, I feel that when they are looked at together they present a history of instability. Remember, I do not have to prove that the home is unfit, just that it is in their best interest to live here. I am very involved in their shcooling but I live over 2 hours away so I can not make sure assignments are done and they are at school regularly. I do keep in contact with the teachers via phone and email regularly and attend conferences. I also help with homework but the children or the teacher have to tell me if it is due and if it arrives. I can only offer so much  in this area on an eow basis. The school has called child and family services on the mom and the investigation is pending. The children are no longer allowed to see  the school counselor since this incident however. Also, in my state it is considered truancy if a child misses more than 10 days a year for any reason and must be investigated.  As I said above, if it were just one, two or even three of these issues by themselves I would agree with you more readily but when they are all compounded together It certainly seems as though the children are not flourishing. I am speaking with my atty. today so I guess we will see what he says :)  Thank you for your advice.

adad

[adadwhocares]

Hello,

Thank you for your advice. I am extremely involved in my children's lives. If I did not live 2 hours away from them I would be more involved in their daily assignments and schooling. I am involved with their teachers and the shcool though. My home is very stable. I have been remarried for 4 years. I have owned my own home for 6 years and been in the same field of work (a recent promotion) with no employment gaps for 8 years. I have never missed a visitation unless it was denied to me and then I always took the prescribed measures and never missed a single support payment.....



The grades falling so much is what really "broke the camel's back" so to speak. I am not willing for my children's future to be jeapordized by mom's instability. I have told bm that I think it would be better if they lived here and she disagreed.

Thank you for the encouragement. I speak with my atty today so I will keep you posted.

adad

[janM]

I disagree, in some instances, educational neglect (falling grades, truancy) has been cause for modification of custody. I would follow up on the CPS report and also on the truancy issue.

Good luck and keep us posted.

[JayC]

>>>However, I feel that when they are looked at together they present a history of instability.<<<

Conjunctively, there may be some weight given in a custody hearing. Instability can be permanent or temporary. You'll have to prove it is permanent in a custody modification.

>>> Remember, I do not have to prove that the home is unfit, just that it is in their best interest to live here.<<<

Firstly you'll have to prove there is a substantial change of circumstances in order to even be heard for a custody modification.

>>> The school has called child and family services on the mom and the investigation is pending. The children are no longer allowed to see the school counselor since this incident however.<<<

Have you set up appointments with a counselor while in your care? An unfavorable report by CFS could help you, provided they don't claim it's a temporary problem that can't be fixed with their help.

>>> Also, in my state it is considered truancy if a child misses more than 10 days a year for any reason and must be investigated.<<<

What was the outcome of the investigation of truancy in the prior year? Were you also contacted in the matter?

Going back to showing cause for custody modifications, it's possible you could have the court determine that the substantial change being the children are now in school but educational needs are unmet by your ex. You'll also need to prove you've taken steps to help them flourish while in your care. Your problem, as with any NCP, the court has delegated you to a minimum role of EOW. It's extremely hard for you to do anything substantial for them, and then logistics make it that much worse. You'll have to come up with something to overcome this burden the court has placed on you. I've heard of NCP's move within their childs school district to overcome this burden. I'm not saying this is right for you, nor that it works in every case, but whatever you can do to be able to go to court and say; "Judge, I'm doing this and this and see how well this is going," rather than saying "But Judge, I can't because.....". Keep lining your ducks in a row and good luck to you.

[Nugo]

I haven't read what everybody else has replied to this, but listen here Adadwhocares:  Go get dem kids!!!  You will win!!!  No child should be living as they are.

[adadwhocares]

We have temp custody through dcfs right now. I hope it lasts ;)