Should I go for full Custody

[plmkoijhu]

I am new to this, so I will be spelling everything out as I do not really understand what a lot of the abbriviations mean. Sorry.

Background Information:
I had a daughter about 5 years ago while in high school.  I was dating the girl at the time, and we decided not to go to court for anything and that we would just work all decisions out between us.  This worked relitivly well for the first 3 years (we broak up when the baby was about 1 yr old).  After about three years it started going down hill.  We would fight about who got her when, harcuts, cloths, just about anything.  We continued to try to do it civily.  During this time we worked opposite shifts so I had her when mom was working, and vice versa.  About a year ago she began taking parenting time away, slowly.  For the past 6 months I had her every Saturday, every other sunday, every Wednesday, and nearly all Friday's.   This was the minimum, I occasionally had her other days during the week as well.   Last Monday (valentines day) her mother and I had a fight, and she said I could see here every other weekend until we got a court order for something else.  We currently do not do child support either way.   Also, Both the mom, and myself got married in the past year if that matters.

Since I have to get a lawyer and go to court anyway my wife an I would like to go for full custody.  We would like our child to continue to see her mom, but we do not think her mom makes very good decisions ( I will list several in a moment).  So my question is, do you think we would have a chance for full costody, and do you have any other suggestions for us.  


Reasons why the mom is unfit:
1) Child protective services called last week due to kid being extriemly dehydrated.  (She was sick anyway, and had to go to hospital...Hospital called CPS due to dehydration).  Her mom had her at the time, so they are going to investigate her.  We are waiting for more info from them.

2) Mother takes her to grandma's house where g-ma/g-pa smoke, and have 9 cats and several dogs.  Daughter has briething problems and requires inhailer anyway...Also allergic to both cats and dogs.

3) At risk of sounding bitter, mother is crazy.  When she gets upset she goes off deep end, and says crazy things/does crazy things.   I dont have room to include everything, just assume she is very irrational.  (Or do not include this in your oppinion. )

These are just a few of the main problems, If necessary I can tell you about 100 more stories.  Anyway, what do you think...Also if anyone has a list of what all of those appriev's used in this bullitin board.

Thank you very much for any assistance, and for all of the useful information I have already gotten from reading other entrys.  

[patton]

Ok, since there has never been a custody order in effect, yes I would ask for full custody with generous visitation for mother.  Because you know mother is going to ask for full custody with not to generous visitation for you.  Also since no one has ever paid child support on this child this may become a "hot" issue.  You can WAIVE child support in some states, so this would look good on your part, where she will probably try to go after the max she can get from you.

Now my question to you is have you documented these amounts of time you have had the child over the years?  What is your proof, other than he said she said?  You are going to have to show the court that you have had the child 50% or more of the time until recently.

There may be a GAL appointed to check out both of your homes and living environment.  Please if there is to ask lots of questions on this.  You DO NOT run down the other parent in front of this GAL.  You main concern is the child.  They will try to ask you questions to trick you up and make you say things against your ex.

There's a form that you can get from child protective services and fill out and it cost a little money, but you can get the full report and find out if there are any others on the child.

Smoking is an issue with a lot of states and Judges.  You may check the law in your state on that.

Ask the court to do psychologial evaluations on BOTH of you.  They will not do them on just her.  So IF she's really "crazy" or has mental issues, this should be proven in the evaluations.  Ask for drug testing also if you think this is possibly an issue.



 
 

[joni]

It is advantageous to file first in a custody battle.

But I will make you aware of this, some states, such as Illinois have a law stating that if the parents never wed and a child is born out of wedlock, the mother is considered to have sole legal custody at the time of birth.  Even if you are on the birth certificate.  Some state, such as Illinois, also state because the child was born out of wedlock and the mother automatically has sole custody, the father cannot challenge custody.

It's can be complicated.  Get an attorney.  Make sure the attorney is certified in family law.  Go to this site to find one in your area

http://www.aaml.org/Directory.htm

[HeavenSent]

>>>There's a form that you can get from child protective services and fill out and it cost a little money, but you can get the full report and find out if there are any others on the child.<<<

I've never heard of such.  I have requested info from CPS and been completley stonewalled.  I know every state is different, but could you elaborate please.  

What state are you in?
What is form called?
Can anyone get info, or only parents?

thanks!
HvnSent

[HeavenSent]

If you are serious about custody, get an attorney yesterday!  

You have some things in your favor already: the CPS report, and your enlarged envolvement in child's life so far.  You have some things going against you too:  
1. child's young age  
2.you are male (sorry, it's reality)  
3.Mom's status quo as primary caretaker.

Start fixing the deficiencies immediately.  You obviously can't change age or gender, so you've got to make up for it in other ways: enroll in parenting classes, join a church, get to know every day-care worker your child is in contact with, same with doctors, social workers, etc.  Whatever you can possibly think of to improve your standing as a parent, DO IT!

Ask your attorney this first...Do you have equal rights to your daughter right now?  If so, you have just as much right to keep daughter and tell Mom she can only have EOW (or whatever).  I do not advise doing this without the advice of an attorney or it could backfire on you.  But status quo carries SO much weight in courts.

Good Luck
HvnSent

[plmkoijhu]

I do not have anything other than he said/she said for how much she was with me.  There are a lot of people (family, friends, teachers, co-workers, ect) that will verify that I saw her nearly every day.  

As far cps, I have been trying to call them to get an update, but the person we talked to is out sick...They are hoping she will be in tomorrow.  

Thank you for the advice.

[plmkoijhu]

I already have an attorney, and he is filing several things for now...
1) Something about paternity (making it official I am th father I guess, but not a test)
2) An emergency something to get the custody back to how it was until this all gets resolved through the courts.
3) I think there was one more thing, however I do not remember it as I am at work, and papers are at home.  

He also gave me a sheet of the 12 "important" things a judge will look at in a change of custody hearing to fill out.  We are nearly complete on this.

In Michigan the mother has full custody by default at birth in unwed parents.  

Also, one more question...In custody hearings do Judges look at financial situations much?  I ask because I am doing ok financially, but her mother is really struggeling.  Her husband just went into long-haul trucking (he has to still pay back about 5k in training costs) and is making much less than they expected, and mother is part time sales help at radio shack.   Last I knew (about a month ago) they were 2 months behind on house payment, and struggeling on other payments.  Just wondered if this would look good for me, or bad as they may want more support if they get it.  

Thank You.

[joni]

We also attend in Michigan for my DH's daughter.  Do NOT file for sole legal custody.  It's near impossible to go from sole custody mom to sold custody dad.  I know, been there, done it, got the TShirt.  This will be almost impossible for you too because you and mom were never wed.

Your best strategy is to file for joint custody legal with you as physical custody parent.

Trust me on that.

One of the 12 factors in Michigan is the ability to meet the needs of the child.  That also is a tough standard.  The child has to be near malnourished and naked before they'll deem a mother as being financially irresponsible and not meeting the needs of the child.  Trust me, have been there on that too.

Is your attorney certified in family law?  Did you check //www.aaml.org?  This may be your only shot at custody, you need the best.

[BlendedFamily]

>Also, one more question...In custody hearings do Judges look
>at financial situations much?  I ask because I am doing ok
>financially, but her mother is really struggeling.  Her
>husband just went into long-haul trucking (he has to still pay
>back about 5k in training costs) and is making much less than
>they expected, and mother is part time sales help at radio
>shack.   Last I knew (about a month ago) they were 2 months
>behind on house payment, and struggeling on other payments.
>Just wondered if this would look good for me, or bad as they
>may want more support if they get it.  

With all custody changes (I hate using the word battle), make sure that you stick with the facts.  The Judge will look at the financial affidavits and such but that will mainly only reflect on CS payments.  Even if they are 2 months behind on their house payment, they still do have a roof over their head.

It's not a financial status quo on who looks better with a checkbook...if you play this card it will make you look as the degrading individual.  Not stating that you are... just my opinion... stick to the facts.

[Lawmoe]

When custody determinations are initially made, they generally are determined based on what is in the children's best interests.  That is the standard that is followed in almost every state.  Additionally, many states specifically set out in their statutes specific factors that must be considered when changing custody.

Even after custody has been determined, changing circumstances often result in changing schedules and even changes to the custody arrangement.   As a result, courts have the power to modify child custody arrangements and child support to meet the changing needs of the parties and the children.  

CUSTODY CHANGES BY AGREEMENT

Often custody changes can be accomplished without appearing in Court so long as the parents agree to the change.  However, it is very important to memorialize any agreements made as a court order by submitting a stipulation and order to the court asking for the Judge's approval of the arrangement.  Agreements that are not memorialized as part of a Court order are generally unenforceable.  

When the parents are unable to agree on custody changes, the issue can be submitted to the Court.  Most states, however, first require the parents to try to mediate their dispute in order to settle their issue out of court before proceeding to a contested hearing on the issue.

CONTESTED CUSTODY CHANGES  

To seek a change of custody, a Motion must be filed along with an affidavit (a sworn statement) supporting that position.  

If the matter does proceed to court, it is important to understand the standard that the Court will apply when deciding whether to modify the existing custody arrangement.   Different standards apply in different states.  However, there are two common elements.  In almost all jurisdictions:

1.       a parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order;

2.       Additionally, it is generally presumed that the court should retain the current custody arrangement unless the party seeking the change custody demonstrates that it has met the statutory criteria by a preponderance of the evidence.

This is where state laws diverge into three general standards that are applied in different states.

ENDANGERMENT STANDARD

In a minority of states, once custody has been determined, it is very difficult to change.  To do so, the party seeking the change must file a motion supported by evidence that the children are endangered physically, psychologically or developmentally in their current situation.  Courts must also find that the benefit of the change outweighs any harm that would occur by the change.  Obviously, this burden is very high and requires that the moving party have a significant amount of new evidence since the last custody order was entered to support their case.  Any incidents or information predating the previous custody order is largely irrelevant unless it can be tied into a pattern related to more recent conduct.

Some evidence supporting endangerment claims may include:

1.       Police Reports.  Police reports showing numerous disturbances at the custodial parents home can be a sign of instability and may support a change of custody. This is particularly true if the children were present at the time of the disturbances

2.       Criminal Records.  Criminal offenses that endanger the children or that leave them without supervision can also be used as powerful evidence in any motion to change custody.

3.       Child Protection Reports.  Reports of abuse or neglect relates specifically to the care of the children and are often the strongest possible evidence for a change of custody where the negligence or abuse has been substantiated.

4.       School Records.  School records showing significant absenteeism, behavior problems  or falling grades cans support claims of instability ion the child's custodial home.

5.       Counseling Records. Counseling or psychological records may reveal problems in the home that lead to symptoms of poor socialization, development or depression issues.  

6.       Medical Records.  Medical records related to injuries may point to a general lack of care and attention by a custodial parent.  

BEST INTERESTS STANDARD

A majority of states use a "best interests of the child" standard when determining whether to modify existing custody arrangements.   That means the Courts will look at all circumstances affecting the child and determine whether a change of custody is in the child's best interests. Even under this standard there is generally a presumption to retain the current custodial arrangement.  When applying this standard, the Court is often guided by specific factors to consider set out in the family law code.  Some factors may include:

1.       The wishes of each of the parents;

2.       The physical and psychological capacity of each parent to provide care for the child;

3.       The desires of any child who is of a suitable age and maturity to express a desire;

4.       The residential and employment stability of each parent;  

5.       Where there have been any incidents of neglect or abuse;

6.       Each parents past history of providing care for the child which is often referred to as determining the child's primary caretaker.

7.       The child's relationship with siblings or other in home family members including potential second family members.

8.       The ability of the parents to communicate and cooperate on child rearing issues;

9.       Each parent's willingness to facilitate and encourage the child's relationship with the other parent.  

10. The child's adjustment to home, school, and community;

11. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

One of the most common questions asked is when a child can decide where they will live.  In almost all states, the child's wishes are only one factor out of many and are never dispositive with regard to the issue.  However, as each child matures, their wishes will carry greater weight in contested custody proceedings.  There is also one notable exception to the rule.  In the State of Georgia, it is presumed that a child age fourteen (14) or older can decide where they will reside.  Even that presumption, however, may be rebutted with contrary evidence.

HYBRID APPROACH

In order to discourage parents from constantly litigating custody, some states use a hybrid approach which makes it more difficult to change custody shortly after a custody order has been entered.  In such states for a certain period of time after a custody order has been entered (generally one or two years),  any motion for a modification must show not only a change of circumstances, but also that the child is endangered by the child's current environment.  After expiration of the one-or two year period, the standard is reduced to a review of what is in the child's best interests.  

CUSTODY EVALUATIONS

If a Court hears a motion for a change of custody and believes as a result that there may be a basis for the change, it may require a custody evaluation performed.  How each parent presents their issues in the custody evaluation can be a critical part of the cases success or failure.