Mother has legal custody; we keep child

[Tennessee Dad]

My husband has a 6 yo daughter from a previous marriage.  In fact, BM left H when she first found out she was pregnant, and moved back in with her ex-h.  A paternity test was done; the child is his, and he had always taken responsibility and paid support.  We have had his daughter the majority of the time since February of last year (2003).  We have documented this.  Actually, we have had her the majority of the time for the last three years.  

Now, BM is losing her house and moving in with her mother (the grandmother).  This is a bad living situation.  She also says we are going back to every other weekend visitation, just as the original divorce allowed.  We have never abided by this; and husband has told his ex that it is not acceptable now.  

What do we do?

[tulip]

My dh has two kids that bm had custody of until about a week ago. He's been taking care of the kids most of the time for well over a year. He finally got joint custody.

BM would tell him they were going back to co visitation schedule every time she got mad, but the truth is, she can't handle taking care of the kids. After lots of documenting, we talked to an atty. He sent her a proposed custody agreement, which she refused to sign. He then sent her a letter asking to go to mediation, which she refused. Finally he served her with papers to appear in court to get custody modified. She appeared at the hearing w/o counsel and did not contest motion.

Now,  here's what the atty told us about the law. In our state, in order to get a judge to consider modification of a custody order, you have to prove either that the children are endangered (very difficult) or that they have been integrated into your home with the custodial parents consent. We could easily prove that the kids have been integrated into our home. They never really moved out, since we live in the same house the kids have lived in since they were born. We used a color-coded calendar to show that the kids spend more nights here than in their mother's home. The "consent" part is the tough one, and our atty has lost cases on this technicality. He never had a good feeling about our case, and was thrilled that everything was so easy once we got to court.

I think the first thing you need to do is talk to an atty--a good one. Let him tell you what he thinks about your case. If you decide to move forward with it, the best advice I can give you is be patient. Nothing happens fast.

[Tennessee Dad]

Thanks for so for your response, it's just what we needed to hear.  Hubby is very concerned for the safety (and sanity) of his daughter.  Mother has shown to be very vindictive; so we are concerned about that she might do if we make a move.  But, it seems, it may be the only choice we have.  

We talked to an attorney in August of last year, and have been documenting everything since then.  We were just trying to let it slide, as long as the BM was compromising.  But, if she really makes it hard on us, and that innocent little girl, we may have to fight back, for everyone's sake

[Indigo Mom]

I was in the same boat as you, and trust me...you could lose everything if the "legal" CP gets a bug up her rear.

My son was "unofficially" living with me for over 2 years.  Every time monster got that "bug" he'd call 911 and send the police over to my home.  (he couldn't just do a police escort, he said either me or hub were trying to "kill" him)  My son was removed from my home each and every time.

Can the mother of these children pull the same crap monster did?  YOU BET.  And then what?  You'll file an emergency hearing and lose.  I'm filled to the brim with positives today, eh?

I did that, the temporary hearing.  I had proof my child lived with me.  Kindergarten school records, 1st grade records, both from the same school in my district (actually, across the street from my house).  I had all report cards and progress reports signed by me and ONLY me.  I had 2 teachers willing to testify that they'd never even MET monster.  I had his doctor reports.  Hell, I even had his library card saying his address was my house.  I had proof CSE did a motion to remove themselves from the case because the child lived with me.

You would THINK that'd be enough proof, but nope.  Judge told me to take a flying leap.  monster said I was "lying" and that I only see my child every other weekend, and good gosh by golly...that's the order we went back to.  

You NEED to hire a GOOOOOD attorney and do it now!  Don't "wait" because she's being nice.  I did that and it screwed my son big time.

You really need to sit down with the father and go over the past 3 years.  Document the best you can regarding how many times mom has picked the kids up, gone to school functions, etc.  I know 3 years is alot to go over...but get the "visitation" time by mom down on paper!!!!!!

Don't lose like I did...it really sucks!  Get your husband to be the legal CP as soon as you possibly can.  

[Tennessee Dad]

I'm sorry for your story; I think I understand because BM in our case is a wee bit looney (or a total nut case, on her bad days).  And hubby doesn't want to make a move until he is sure he can win; and there are no guarantees, I know.  

[Indigo Mom]

-----And hubby doesn't want to make a move until he is sure he can win; and there are no guarantees, I know. -----

Look at it this way.  The childs been practically living with you for 3 years.  How will it feel to have her taken away now?  Pretty devastating.  

How will it feel if you wait and wait and wait...and it turns into 10 years?  You think you'd be devastated having a child removed after only 3 years?  The longer you wait, the harder it will be on you, hub, and the child.

You're going to HAVE to dig up all the info you have to prove the child is living with you.  You HAVE to hire an attorney and get this into court.  "I" feel it's an emergency because if she's 1/8th the nut monster is, she'll take the child away when she finds out what you're doing.  That's not good.  An attorney could set some sort of hearing, but have "something" set so the child can NOT be removed from your home.  

You're in a real crappy situation.  There are no guarantees, like you said...but you can "minimize" the damage by going for it.  Hopefully you'll get an attorney who can prevent the "nut" from hurting the child.  

Oh, almost forgot.  I hope you're ready to explain to a Judge (if it's a psycho judge) WHY you've had this child for that long but filed nothing.  Judges can be real jerks, so watch out and have EVERY base covered.  

-----I'm sorry for your story; -----

Don't be sorry, after battling this bullcrap for 6 years, I'm the custodial parent of my son...and monster has no rights.  

[tulip]

And it also depends on how financially and mentally she is prepared for a fight. In our case, bm would say one minute that she wanted dh to have joint custody, (she wanted him to take the kids, but didn't really want to change custody because she would lose $$ and control) the next thing she would say that if he took her to court she would fight him tooth and nail. In October, we followed the co for a month because she was pissed off and being stubborn, that was when we decided it was time to go to court. Although we had already been making preparations for it. We had days and times of visitation with the kids documented since Feb of 2002. This showed a pattern of the amount of time dh had the kids steadily increasing (at bm's request.)

Like I said before, our atty never really believed we had a strong case "legally." What we did have was an opponent who is very unstable emotionally, and can't afford an atty. She thought she could get a free one, like she did when they divorced, but she was wrong. She truly believed that if they went through another custody eval, she would lose. That's partly because of dh having become the "primary care provider" and also because of many other issues that she knows make her a terrible parent. That's why she didn't contest joint custody at the hearing. Had dh fought for sole custody, I think she would have fought back harder, though.

[Tennessee Dad]

Just to clarify, the BM is losing her house because she has not worked in over 2 years. And during this time, we have had daughter more and more of the time. We believe she is wanting the children more time now so she can file for more support. She has even stated her bankruptcy attorney told her that if she lost the kids, she has no income, no government subsidies, no food stamps, etc. The father of her other child isn't paying his support, because he has the child the most of the time. We warned him that this will lead to trouble. We have continued to pay her support every month, and early a lot of times if she asked for it.

The grandmother called my husband last night just to talk. He said she was very civil; she told him the part about the dog poop was not right. But our daughter volunteered this information to my husband's sister, so she got it from somewhere. We sure didn't know anything or ask her about it. That's just what he told the grandmother last night. He told her I have had my daughter the most of the time for the last 3 years, and I don't want to only have her every other weekend now. Maybe she will talk to her daughter; maybe she was just blowing smoke. Only time will tell.

Thanks for all your advice and suggestions. Keep 'em coming.

[tulip]

I know it's hard to really take care of the child, and pay support to someone else who is not spending the money on her, but we've been told that if you are behind on your support even a little bit, there's no point in trying to get the kids, because you won't. It's also important for you to show the court, and anyone else who gets involved, that you're not doing it because of the money, your only concern is for the well-being of the child. There are a lot of people who try to change custody of their children only because they don't want to pay cs, and that's probably a lot of the reason it's so hard for the rest of us!

Last fall, dh sent bm a proposed modification offering to continue paying her the same amount of support until June of 2005. This was to encourage her to sign without going to court. Basically saying, look, you don't have to take care of the kids, and you can still take my money, because I just want my kids. She didn't sign it, and now he has joint custody, so she fraudulently filed this offer behind her back, because the judge said he could have the support modified anytime he wants to, and dh said in court that he would pay her the same amount until she is no longer enrolled in school full-time. We are working on getting this corrected now.

[tulip]

I know it's hard to really take care of the child, and pay support to someone else who is not spending the money on her, but we've been told that if you are behind on your support even a little bit, there's no point in trying to get the kids, because you won't. It's also important for you to show the court, and anyone else who gets involved, that you're not doing it because of the money, your only concern is for the well-being of the child. There are a lot of people who try to change custody of their children only because they don't want to pay cs, and that's probably a lot of the reason it's so hard for the rest of us!

Last fall, dh sent bm a proposed modification offering to continue paying her the same amount of support until June of 2005. This was to encourage her to sign without going to court. Basically saying, look, you don't have to take care of the kids, and you can still take my money, because I just want my kids. She didn't sign it, and now he has joint custody, so she fraudulently filed this offer behind her back, because the judge said he could have the support modified anytime he wants to, and dh said in court that he would pay her the same amount until she is no longer enrolled in school full-time. We are working on getting this corrected now.