Trying to Modify 50/50 Custody

[Mom0f3]

Here lately my Husband and I have been having on going issues with my stepsons Mother.  Back when school was in session they called DFS on her for issues over smoking weed and him being scared of her husband that were brought to their attention by my stepson.  Once DFS had made contact with her she decided that he stay with his Father until he decided he liked his stepfather and also because she was worried about her other children being taken from her.  At that time we had him for a month and when the month came up for her to get child support she was ready for him to come back home.

Over a month ago my stepson was playing outside during her week and wanted to get a bite to eat, however the Mother had the door locked because they were smoking.  He used his cell and called us, we made him come home to us.  I called the local non emegency here in KC and the police came out.  We made it clear it was her week but he wasn't going back to her house.  The police went and spoke with her and on Moday I called DFS again on her.  Without any physical proof they will not do anything to help out.  A month has gone by and his mother has only seen him twice.  My husband asked about an agreement to change the custody from 50/50 but she is convinced she is doing nothing wrong and that he is telling lies.  We know for a fact that he is not telling lies but we are stuck in a hard place at this time.  I have printed out a Change Of Custody Plan and certified it with the USPS and return receipt so we are aware she got the item.  I hope this will be good enough to suit her needs, however we think that she will not agree.  We have contacted lawyers but it costs way to much money.  A Child Protection Order is out of the option due to them already having a custody agreement, he has to take her to court where the original papers were filed.  And we can't get legal aid.

Any ideas?

[MixedBag]

A child protection order is not out of the question -- whoever told you that was wrong.

[Mom0f3]

A child protection order is not out of the question -- whoever told you that was wrong.

We already went to the court house and filed the CPO and it was the judge who ruled against it because there was already a custody agreement between him and the Mother.  The judge said he would have to file where the custody papers are at.  Right now we are stuck, I know that today she got the document we sent to her but my husband is sure she will not agree to anything.

[ocean]

Sounds like you went to the wrong family court to have the RO put into effect. You must go where the child lives or where the last set of family court papers came from. File the RO (with proof so judge can see, police reports, cps paperwork, and current concerns) AND file for temporary emergency custody. This usually will go before a judge that day. You can tell them that you already filed at XXX but was told you had to file there. If that doesn't work, then file for custody modification. That will take a little longer to get into court and may take months to resolve.

[Mom0f3]

Okay the CPO was done in the same court system as to where the custody papers were filed in 2002.  Everytime my husband has gone to get a PO for my stepson they turn him down, however when she would file one without any proof she would get it then drop it. 

If she doesn't want to work it out with the papers we sent to her and we do go to the court and ask about custody modification will he need to resort to getting a lawyer?  We are trying to work it out by sending her the papers so nobody has to worry about lawyers.  And do you just go to the clerk and ak for the modification?

[MomofTwo]

Having a lawyer is your best bet to winning a modification unless you can figure out how to file your own motions, what you need to do, etc... It depends where you live...smaller towns the clerk may help you with what you need to do, my experience and where I have been is if you don't know how and what to file, you are out of luck. They won't assist. Wholly dependent on where you are.

You sending her papers means absolutely nothing.  Only a court can order a modification so you need to petition the court for the modification. If she is willing, which it does not sound like she would be, then you need to take your amended agreement from both parties and have it filed with the courts. 

If you aren't sure, your best bet is to at least consult a local attorney.

[ocean]

Where we live, we go to family court and file a petition. They type it up and then give you a date. Here, it is usually about a 3 weeks to get a date. Call your local family court and ask where to go and if they type it up or do they have the papers to fill out.

Custody change is a major thing in the courts. You will have to prove neglect and depending on the child's age, they may get a chance to speak or to have a law guardian assigned to them. This person will interview the child and see what the child wants and fight for what is in their best interests and not from one parent or the other. You can request a GAL to be assigned if you think that will help your case.

Where is the child now? Are you still keeping him? Has she seen him? If she is not calling the police on you to return him or not going to court herself...maybe you should just keep him for as long as you can. Once the court sees you have child for an extended amount of time, they dont like to change it, Later you can go for a change when it has been a while?

[Mom0f3]

We have had him now for over a month and she has only seen him twice.  She hardly calls his cell phone.  And this is the week that she is to have him, she came by the house to give us her opinions on what she wants changed today and didn't even ask about her son.  It's as though she doesn't really care.  The one thing she wrote a major paragraph on is that if one parent is going to call the police of DFS that we need to contact the other parent first because she says it is harrasment even though she doesn't think locking her child out of the house isn't a kind of abuse.  We have had the police out once over her wanting to see him and by the custody papers we have now being so old they gave him the choice of if he wanted to stay or go with her to the water park.  she doesn't want to pay anything on him and wants for us to cover pretty much everything.

My husband is wanting to get the lawyer but it might be some time before we get somebody because we don't have that kind of money right now to have up front.  And we plan on keeping him for as long as we can without her taking him.  It's pretty much go with the flow at this point and it's driving me crazy cause being a step-mom there isn't anything I can do but stand or sit back and watch.

[ocean]

Well that is good that she is talking to you...she is probably liking the "freedom". Can you live with the changes she wants? The thing about dss statement, go ahead and put it in there- "parents will try and call the other parent when a major event is happening and then call appropriate authorities if it can not be resolved".

If she is leaving them with you, then let it be and try to get an agreement you both can live with. Do you have a child support order in effect? Whatever it is will continue unless you modify. She can come back a year from now and get any money ordered in the court order even if child lives with you full-time AND even if she notarized a letter. The court order needs to be changed.

Once you come to an agreement, then you can file the same way. You may have to appear if you dont have lawyers but that is okay. The judge will just make sure that this is what you both agree too if she tries to pull something then you can always ask the judge to continue the hearing at a later date to get a lawyer. No reason to pay a lawyer if you agree.

The only other issue is that according to the court order she can take him and keep him until it is changed. The longer you wait to you, the better to keep everything the same in the courts eyes but also she still has half custody now so when school starts she can change her mind and pick him up from school and keep him for at least his week or longer. Hopefully over the next few weeks you can iron it out and she will be in agreement.

[Mom0f3]

We have made a counter and included some of what she is asking for except for the fact of her wanting to keep joint physical.  My husband is also asking that she and other adults in the household take a drug test so we are aware there is no influence what so ever around my stepson being that these are reasons DFS have been called on.  I did leave in the part of contacting the other parent and explained as to why the enforcements where contacted (best interest of the child), however that we are unable to speak for other organizations who have turned her in.  My husband, many times, has spoke with her about the issues DFS was called however this last time was a bit extreme so we called on her.  This was the first and only time we have called on her.

I am full aware of what can happen once school starts, however being the school knows her history if we speak with the school I'm sure we might be able to work out something with them.  They were the ones who have hotlined her in the past.  And at that time we went through this same issue of her not having or wanting him at her place.

I am doing my best at writing these plans out to suit both her and my husband to the best I can at the best interest of our child.  It is hard being the one stuck in the middle of everything.  And at this point my stepson really doesn't care cause he doesn't want to go back to her house, but in the long run I think it might hurt him as he gets older.