I filed a c/s modification, now he wants full custody

[formykiddos]

I have filed a motion for c/s modification due to change in circumstances. Our daughter was diagnosed with diabetes type 1 in October. Medical bills, food bills, transportation bills etc. have increased. I have been unemployed since April 09 due to business closure. My fiance' supports the household and I receive minimal unemployment and court ordered c/s of only $400.00 a month for our 2children ($200.00 every 2weeks), we agreed on this amount 3 years ago because I didn't want him living in squalor when the kids visited every other weekend.  He also pays child support for one of his other children (5 kids total..2 are ours, he never supported the others). I knew his take home would be minimal. My reasoning at the time was that I didn't want the kids to be with him in an unsuitable environment.
Since the divorce he has been unable to provide a stable place for the children to visit and he has been in and out of homes and relationships. He has a good job for the county, he makes quite a bit more than he did at the time of the divorce and I think now he can afford to help the kids more and still maintain his lifestyle. I have primary physical custody and we have joint legal custody. The kids see their dad every other weekend for 1 night it should be 2 but he works graveyard and cant be home with them Friday night, so they only stay Saturday night. He occasionally takes and extra day off so they can stay 2 nights but not often. He does not have them for the week of Christmas or Easter vacation like he should because of his graveyard schedule (I'd rather they were home with me anyway).
He does not reimburse me for co-pays, I do submit receipts to him (divorce states we share those expenses) he does not buy anything extra for them like school clothes,new summer clothes etc. I have asked for more help several times before and now that our daughter is needing more, but he has refused. Saying he is broke, Yet he has two rock crawler jeeps and goes out of town often to support his 4X4 lifestyle and he updates his web sites that show his jeeps and all the NEW parts he has added andtrips he has taken. I don't see how he is broke but whatever.
I filed a motion for child support modification last week. He received the papers this morning and called (I let it go to voice mail) to say angrily he is filing for full custody and I am an unfit mother being unemployed and not providing for our children, he then continued to say I am trying to EXTORT more money from him. I cant believe he thinks paying child support is extortion. I have tried to maintain a tolerable relationship with him even though our marriage was verbally abusive. I am letting calls go to voice mail because I know he will threaten me in some way. I had a restraining order on him for death threats 3 years ago before the divorce and will not hesitate to do it again, but I do not want it seen as retaliation by the judge. I do however fear him.
He doesn't want to pay more support for his children and he is going to lie and threaten me to get me to back down. I am concerned about the kids and what he is going to say to them...our daughter knows whats going on (she is old enough and understands its for their benefit) I think he will try to get our son to go and live with him. I am representing myself in this motion, I cannot afford an attorney at all.I feel if he is able to afford an attorney to try for custody, It again proves that he is able to afford more support. In the beginning it was not about support, I wanted my kids! I was a single mom making great money and I didn't think I needed that much from him, I was more concerned about where they would be living when they were with him. So please don't think its about the money, if it was I would have fought for full support from the beginning. Circumstances have changed and the kids need the help now. Plain and simple.
I am a good mom the kids have been with me and raised by me and they are happy my son is an honor roll student and my daughter is dealing with being newly diagnosed diabetic. My fiance loves them and treats them like his own.They are healthy happy children. (no abuse neglect drugs drama etc.)
I have tried to cover all the bases with this post and answer all the questions that may arise. I do understand that this is his Reaction to my Action and he is blowing off steam and making his usual threats.However the threat of him taking my kids is very real and unsettling tome.
Someone PLEASE re assure me that I don't have anything to worry about.
Thank you to anyone who has advice or words of wisdom.

[4honor]

In order to change physical custody, there has to be a change in the circumstances of the children or the non-petitioning parent. So stop and breathe deeply and think calming thoughts.

As far as the child support modification, each state has a time period of how long since the last modification must go past for another modification. Check your state statutes on the timeline. If you are in a state with an income shares model, it will take into consideration both your income for any modification action. If the ordered amount does not change enough (some states 10%, some $50, some $100) there will be no change in the ordered amount.

There are calculators online for most states (this site has many of those links) and if you know what job your ex has, then you could check the county website and see what the pay scale is. Run the calculations. See if it is going to make a diffference. Your state may take into account children of previous relationships.

When BM asked for an increase in CS for my SS, she was only looking at the fact that DH had an increase in his wages. She forgot he also had 2 other children AND she was making an equal amount. CS went down and she paid her attorney $8K for the privilege. This is in WA state. (CS is over now Yeah!). IN calculating CS, they first did what DH's amount would be based on 1 child, then what amount with 3 children. The difference was the credited amount from the one child amount. BM took a look at the $168 a month she would have gotten and decided to take over other costs for a slightly larger monthly amount (tax exemption split, transportation split, medical costs split 50/50, etc.)

You did not say which state you are in. That makes a difference in the advice you are offered. I have given you a broad range of possibilities (pretty vague overall) but only because you did not give a state.

Also, I am not an attorney. I have only relayed the second hand experiences I have seen over the years since being here (over 10 years).

[formykiddos]

We are in Nevada. Three years ago he should have paid 1197.00 a month for our two kids. We agreed on the lesser amount at that time. He is making quite a bit more now and it would be 25% of his income for two kids. But Its not about even that. I would be happy if he paid a few hundred more a month like 600.00 just to help cover monthly diabetic prescription costs co pays and special diet costs. He wont even agree to that. So I filed a motion.  I just cant believe he would try to take our kids from me because he doesn't want to pay more support, he is selfish for trying to uproot them instead of supporting them the way he is supposed to. His daughter is going through a rough time learning to deal with diabetes, we all are and he wants to remove her from her home on top of that.
I'm sure a judge would see through this and rule in my kids favor...right?

[Kitty C.]

'I just cant believe he would try to take our kids from me because he doesn't want to pay more support, he is selfish for trying to uproot them instead of supporting them the way he is supposed to.'

He said it in retaliation.  Custody and support are two completely different issues and if he tries to bring it up in court when you're there for support modification, the judge will tell him he will have to file separately for that issue.  Plus, he will have to have 'proof of a significant change in circumstance' in order to justify having custody changed.  In this case, a significant change in circumstance would be anything detrimentally affecting the children caused by you or someone in your household, very difficult to prove.  Right now, just deal with the support modification and take his threats to change custody as just that...threats.

'I'm sure a judge would see through this and rule in my kids favor...right?'

It's anybody's guess on how a judge will rule, so it's no use to speculate, even on the support issue.  All you can do is file and make sure you have ALL the documentation needed to back up your claims of increased expences (receipts, doctor's notes, etc.).  I know you said that you cannot afford an atty., but you must think about the distinct possibility that you may have to have the diagnosing doctor testify, which can get costly.  Medical professionals are considered 'expert witnesses' and as such, garner high fees for testifying in court.  Something to think about and maybe asking your DD's doctor the next time she has an appt.