Modification of Custody Advice

[thegoodfight]

Okay, here's the story. My ex and I divorced in October of 2009 after over a year of legal separation. We have shared custody of my 9 year-old, with her maintaining primary residency and 50/50 visitation. Since June of 2009, she has worked a second shift job 4-5 days a week. So, since that time, my son has stayed with me 4-5 days a week. In October of 2010, she changed to a third shift job, so my son began to stay with me five days a week. Backtracking...In February of 2010 we disputed who would claim my son as a dependant for tax purposes and it turned out that we both claimed him. In November of 2010 we received "the letter" from the IRS. I discussed it with her and, even though the IRS said that I had the right to claim him, I would pay half of whatever she owed to them. She initially agreed but called back the next day and refused the offer. She then said that she was going to hire a sitter to stay with my son overnight while she was at work and that we would revert to our original visitation agreement of being with me three nights one week and four the next. Needless to say, I strongly objected, saying that I didn't see how that was in his best interest. She replied "His best interest is my best interest." I immediately went to my lawyer and we filed a request for modification of custody, seeking for primary residency to change to me. She then countersued for sole custody and modification of child support. After a pendante lite hearing the judge ruled that custody remain as originally agreed, but that I have ROFR before a sitter is used.

After the pendante lite hearing, my lawyer advised that I sit on it for a while and build more status quo.   He told me that the only way she could help her case would be to find a job with first shift hours or get married.  I waited for a month and finally decided that I was ready to move on.  We came up with a settlement offer and mailed it to her lawyer.  The next day, I pick up my son and...yep..."Hey dad.  Guess what?  Nolen and Mom are getting married!"  Her fiance lives with his mother and has two kids (son 16 and daughter 7).  They're moving into her two bedroom house.  He has visitation every weekend.  She thinks she's marrying a babysitter, even though he goes to work at 4:30 in the morning and she doesn't get home till 7:30 in the morning.

I don't care about the tax money or the child support, I just don't want my son with a stranger overnight and I'm becoming increasingly worried about my ex's judgement in raising him. Shortly after we separated, she spent a couple of weeks in a psychiatric hospital and has a history of psychiatric problems. She's badmouthed me to my son, lets him sleep in bed with her and keeps him up past midnight. She's so tired during the day, that when he's with her, she regularly takes three to four hour naps. I'm highly involved in his life, from volunteering in his classroom, having lunch at his school, participating in karate with him...everything I'm supposed to do. I'm pretty confident in my lawyer and he seems pretty confident in my case, but I still can't shake the worry. I remarried in August and my poor wife is being put through the wringer already. I just need some outside advice or some votes of confidence.

[gemini3]

Wow, your case sounds a lot like my husbands.

Long story short, my husband didn't get full custody - he ended up with 60% time share, and FROR when she works the overnight shift.

[thegoodfight]

At this point, I'm not asking for full custody, just a shift to primary.  Tell me more about your husband's case.

[ocean]

Just keep documenting and building your case. Take pictures of times together with date stamped and maybe your wife taking the pics so she can testify about them.

Is the mother allowing you to watch him now when she works? You can still keep the ROFR even if she remarries. Sometimes they put a time frame on it if people are remarried. Like "if mother is away from home more than 3 hours, father will be able to spend parenting time with child". This way she can go to the store/mall and child can stay at mothers house, but if she goes to work, overnight trip, child goes to you. You can even add a sentence that says "father will always have FOFR when mother is working"

Child can share room but everyone needs there own beds....so see what happens when other kids sleep over there...

[sillystring]

My DH & his ex had FROR in their CO and it did NOT apply to stepparents - so even if the fiance moves in (and even if he marries her), you should still have first preference to pick up the child.