joint custody issues

[melissa3]

I've made a post about joint-custody before, and recieved a lot of good advice, but my fiance and I still have some questions. We would appreciate the help =)

Nutshell: My fiances ex is doing everything under the sun to punish him for moving on and being happy with another woman. In the name of "Childs best interest" the ex has taken my fiance to court for:

1. motion to not allow significant other at visitation,

2. motion to suspend visitation due to drug abuse (although that allegation is false), motion for fiance to pay half medical bills and motion for more child supprot. (these motions were all in one shot and to make sure we went broke)

3. Contempt of child support.

All of these motions were brought before the court in a matter of 4 months and they all started as soon as my fiance and I became serious in our relationship.

My fiance is going through a substance abuse evaluation to prove he isn't abusing his prescription. We have a court date in either three months or on the completion of the evalutation.

The court order my finance and the ex had previously was only tempory, which means, when they go to court now custody, physical custody and child support will be decided upon.

For the past three years, the ex has had temp. physical custody of their 5yr old daughter but my fiance wants 50-50 legal and physical custody. Recently, our lawyer told us that we've pissed off the judge too much and it's unlikely that he'd do us any favors and grant joint custody. My opinion to that is, I don't care what the hell the judge thinks, he can't make a ruling without a law to back it up. (As of now, there is no legal reason why 50-50 shouldn't be granted.)

Our lawyer also stated that it would be better to just get a visitation order and then go back later to ammend it. (What????!!!!!????) The problem with that is we are broke because of the ex's games and we'd never be able to afford to go back to court to get it "modified."

Can anyone please explain what the hell our lawyer thinking? I'd say he's thinking about job security =)

How difficult is it to modify an order?

If you have any advice or tips on how to achieve 50/50 or if you have a story to tell, please share. We are desperate for any help.....

[Miller]

but if the ex has had physical custody for the past three years, then chances are that she'll keep it.  You would have to show that it would be in the child's best interest to change the arrangement.  Is the child not thriving?  Even though the orders were only considered "temporary", the fact that it's been three years will work against you.  Courts are reluctant to change the status quo of the child without a VERY good reason.

Modify an order?  Extremely difficult!

The judge is not required to quote any law when he/she makes their ruling.  And, at this point, since the child has been living with the ex for such a long time, then the judge won't change that unless there are extreme circumstances to show why a change is necessary.

I don't want to sound like you should give up, but you should consider trying to get the best possible visitation schedule at this point.  Start from the point of wanting 50/50 and try to get as close as you can.  

[melissa3]

Thanks for your advice!

My fiance and I fear that if the mother continues to have sole physical custody it will be catostrophic to the daughter. Also, no matter how good of a visitation schedule we get the ex won't care and won't obey it. We are figuring that a court order mandating cooperation between the parents would be better followed than a court order that "suggests" visiting time. In other words, a court order for visitation gives the ex too much control, which she abuses.

Besides the trama of being used as a pawn, other harmful things the mother does to the daughter include:

1. Mother and daughter share same bed, even though there are plenty of empty bedrooms. Mother has developed a severe attatchment and encourages any signs of co-dependency in their daughter.

2. Mother "babies" daughter. For example, the mother does everything, rigs board games so daughter always wins. The daughter is five years old and has low self-esteem and a low self-image (she told me her mother said she was fat.)

3. Because of Mothers "babying" habit daughter has developed a speech impedement, which the daycare facility has expressed concern about.
 
We fear the daughter may also develop a learining problem if left in the constant care of the mother.

We only want what is best for the daughter. As stated, judges don't like to change the satus qou but, in this case, there is no concrete reason not to. I don't understand why the judge wouldn't give 50/50 a chance.

One more thing, it's evident the mother won't encourage a relationship between the daughter and father so why should she have sole custody????

How much proof does a judge need to realize 50/50 is better plan?

[Miller]

there needs to be "clear and convincing" evidence that the child is not thriving in the current arrangement or that the current arrangement is harmful to the child before the court will even think about changing the status quo.

The fact that the mother lets the child sleep with her is not a reason.  "Babying" the child is not a reason either.  The speech impediment is a concern but not a reason to change custody.  You could perhaps ask that the child be required to have speech therapy to correct this problem, but then be prepared to help pay for the therapy.  Perhaps once the child starts school then she can receive speech help through the school.

What kind of "proof" do you have that the mother is trying to interfere in the relationship between the child and the father?  Once again, unless there is extreme proof, then this won't be a consideration either.

Once a custody arrangement is set-up and occurs for a length of time, then it's nearly impossible to reverse it unless the custodial parent acts in a way to endanger the child.  Honestly, it takes a lot.  And, proving it is a long battle and the custodial parent is usually given opportunities to correct the situation.

If the child is failing school (not just one grading period either), then that is a reason to consider a custody change.

The court is not looking at why there isn't a reason to try a change...they are only interested in any reasons "for" a change.  Going in there and saying that there is no reason not to "try" 50/50 will never work.  The courts won't even hear the motion without clear and convincing evidence as to why the current arrangement is detrimental to the child.  If you try to say that there is no reason not to try 50/50, the immediate response is that the child is thriving in the current arrangement so it is not in the child's best interest to change things and take the chance that the child won't thrive as well.  The burden of proof is on the non-custodial parent to prove that the custodial parent is unfit and it is not in the child's best interest to remain with them.

I know it's frustrating but there's very little that can be done.  The biggest mistake was agreeing to the temporary custody and letting it occur for so long.

Work to get an agreement that is very specific about the time your fiance gets with his child.  Specify every weekend, holiday, summers, Christmas Break, Spring Break, days off school, etc.  Be more specific than you think you need to be.  Have exact times. List who provide the transportation.  If you're worried that the mother won't follow the agreement, get a clause in there addressing what happens if any time is missed.

[catherine]

isn't "proof" in the eyes of the court.  "Proof" for them is the result of a GAL report, home evaluation, or qualified therapist report.  It is not against the law to "baby" your child (no matter how wrong it may seem to you and me).  That would be considered a parenting choice.  Be very careful what you try to present as "proof" as sleeping in the same bed as your child is practiced regluarly in some cultures.

I would also attempt for as close to 50/50 as possible.  Unfortunately when there is a high degree of conflict after the divorce/separation of biological parents, judges are very leery of granting 50/50. (doesn't make sense to me either)  However, their theory is that the antagonism and loathing on a constant basis will be very bad for the child.  In that respect perhaps they are correct because children who have to live with two parents post break-up who can't stand each other have very troubling stats. academically and behaviorally as they grow up.

But yes, a definate visitation agreement is a must.  (call it a parenting agreement and use the word contact and access instead of visitation)Please make sure it specifies everything down to the finest detail such as pick up times and places, travel responsiblities and most definately include what is called a move away clause and ROFR (right of first refusal).

[melissa3]

Thanks again!

Thank you for clarifying what a judge is thinking and/or looking for when considering 50/50.

I guess I had assumed (and we all know what happens when we assume) that judge would see things as everyday people see things. I mean, since the daughter is only 5 I figured now would be a good time to transition into 50/50. She isn't in school, doesn't have a social group yet and hasn't been poisened against her father by the mother. If I was a judge I would think this would be a good time to jump on things. But that's just my opinion.

Recently, and maybe on this site, I read that parents, who engage in 50/50 parenting and are given a strict court order, actually tend to do well working together to raise their children despite previous animosity.

I just hope everything works out for the best of the daughter. I know it can't be good to live with a meniacal, vengeful mother who will stop at nothing to ruin your father. Luckily, that won't happen in this case =)


1. So, obviously, we have to prove how 50/50 would benefit the daughter?

2. And, we have to prove how the Mother is willfully sabotaging the relationship?

[mishelle2]

remember though to ask for more than you want otherwise, you may get less than you deserve, ask for the moon (50/50) and sometimes if you leave the label of Physical custody with mom with both of you having joint legal custody, (as that is the most important one, gives you equal decision making power) then you may get the 50/50 visitation, you need to show the judge you are willing to co-parent with the mother in the best interest of the child, What state are you in? Do you have to attend mediation? If so when you are in there, DO NOT YELL, BELITTLE OR COME ACROSS ANYOTHER WAY EXCEPT I JUST WANT WHAT IS BEST FOR MY DAUGHTER.
do you have an  attorney? if not get one.. We went to the courthouse and watched the attorneys.. it gave us a good idea of who we wanted and who we didnt. and it will give you an idea of how the judge is. but that is just a suggestion, and remember usually the one with the attorney wins.. (just my opinion from personal experiences()

[melissa3]

Thank you

We don't have mediation but we do have a good (and new) attorney. Our old one made a HUGE mess out of our case.


Honestly, all we want is for everyone to live peacefully and to work together to raise a happy, intellegent child. However, I'm not so sure the BM likes the idea of me being around forever and I think that is going to cause a lot strain. She already has tried to remove me from the picture, even though I've never done a thing - I've never even met her. I don't plan on trying to take her place, and I understand that they are her parents, but there are somethings I'd like to be involved with - like birthdays, school funtions or dance recitals.

Anyway, my fiance just want's to be a father and he won't be able to do that successfully if the BM was to retain sole physical custody. They have joint legal but that doesn't mean a thing to the BM. She is content to raise their daughter by herself, with a support check ofcourse. Also, it's highly unlikely that BM would help to foster the relationship between the father and daughter. Luckily, there is already a solid one in place =)


As stated, my fiance wants things to work. His daughter is the apple of his eye and only wants her to be happy.

[mishelle2]

WELL THEN FIGHT LIKE HELL.. AND LIKE I SAID BEFORE.. ASK FOR MORE THAN YOU WANT.. AND I HOPE AND PRAY.. YOU GET WHAT IS DESERVED.