Going Back To Court...UPDATED

[jilly]

For some time now DH has talked about changing his parenting agreement (SD was 2 when it was filed!) but he's never done anything more than that.  Yesterday was the last straw for him and he's ready to finally stop the BS.  There has definitely been some PAS going on.  We didn't know how bad until last night when DH talked to SD. (We have her one night out of the week and EOW.)

He told the Ex yesterday that he wanted to have SD live with us for the summer.  She told him flat out "NO".  There's no compelling reason why she shouldn't be allowed to spend the summer with us.  We live about 20 minutes from the Ex. He told the Ex he's trying to work things out with her amicably but if she doesn't want to cooperate then he'd see her in court. Looks like it's going to be court.

Right now the ex has sole physical custody and they have joint legal custody.  I began a draft of a parenting plan that basically supersedes and replaces the current order.  He is looking for shared physical and joint legal custody.

We were initially looking at one week with us/one week with the Ex but think that may be too much back and forth.  So, now we're thinking two weeks with us and two weeks with the Ex.

Has anyone done this type arrangement before?  Also, going with the two weeks custodial time, I'm having a bit of trouble with the wording for the paragraph that sets out the custodial time for each parent.

Here's part of the parenting schedule section:

"Regular Parenting Time

4.   Beginning Friday _______________________, 2007, the following PERMANENT Parenting schedule shall be in effect:

1.   ______ and ______ shall share Parenting Time equally.

2.   Each Parent shall have custody of _____ for two weeks at a time beginning on Friday evening at 5:00 p.m. and ending on the second Friday evening at 5:00 p.m.  _____, or his wife, ________, shall pick ________ up from after school care beginning on ______'s custodial Friday evening.  _______ will pick _________ up from after school care on the second Friday evening on which her custodial time begins."

Can you say awkward??!!  I just don't want there to be any doubt/loopholes on this.  I appreciate any comments/suggestions on the wording and the feasibility of two week custodial time.

P.S.  DH has an appointment with his attorney next Thursday and I'll be taking a draft of the new parenting plan for her review.

[mistoffolees]

How old is the SD? Also, how long has your curent plan been in place? That will make a difference.

The biggest issue is going to be school. Are you both able to conveniently get her to her school without difficulty and arrange for after school care, if necessary? What about extracurricular activities (piano lessons, dance, soccer, etc)? If those isses can be resolved, I like my current alternating week schedule. I would think that alternating weeks is better than two week alternation (at least in my situation). It seems to me that if you alternate weeks, it can be pretty much a normal living arrangement. If you go 2 weeks without seeing the other person, it's going to be a greater disruption when you make the change.

The biggest question, though, is what is your grounds for a change in circumstances? The fact that you don't like the current arrangement isn't sufficient. While I obviously don't know what's going on behind the scenes, your post sounds awfully one sided: "There's no compelling reason why she shouldn't be allowed to spend the summer with us. " Well, no, but what's the compelling reason why she SHOULD be allowed to spend the entire summer with you? Your husband has taken an arbitrary one sided position and then calls the other person unreasonable because she didn't immediately agree (or at least that's the way it sounds from your story above).

You have an existing agreement. If it's working and everything's going fine, the judge isn't going to change it just because one side wants more time. You need to show a solid reason why it's better for the kid(s) to make a change. In addition, you generally need to show that the circumstances are significantly different than when you signed the agreement. Unless you can do that, it's not going to happen. So I'd suggest that you back up and address these two fundamental issues before you even spend your time with the attorney:
1. What has changed that is sufficient to consider a change in custody and/or a significant change in parenting time?
2. If there has been a change in circumstances sufficient to justify opening the matter, what FACTUAL basis is there for your child(ren) being better off with the proposed arrangement compared to the current arrangement.

[jilly]

SD is 9 years old now.  The original order was entered in 1999 when she was 2 years old.  It's two pages of worthless paper.  There is no set visitation schedule or holiday schedule.  Until recently, things had been going smoothly.  In the beginning, DH only had her EOW.  That changed a little over 2 years ago when the Ex and her second husband separated.  SD was having some problems related to the break up and DH started picking her up on Wednesday for an overnight visit.  So we now have her EOW and one night during the week.  We also alternate the major holidays.  SD spends time with the respective parent on Father's Day/Mother's Day and spends time with the respective parent for birthdays (hers or theirs).

School is not an issue.  The school she attends is also approximately 20 minutes from our house as it is across the street from the Ex's neighborhood.  SD does not attend before school care so DH drops her off at the Ex's house.  She does go to after school care (although that is becoming sporadic since the Ex doesn't have a job) and, again, there's no problem with us picking her up from there.  SD isn't involved in any extracurricular activities.

I'm glad to hear that, in your case, the one week with you/one week with Ex is working.  And it may work in our case; just trying to find out how it's been working for others.  My DH works EOW.  So, the weekends we don't have SD are the weekends he works.  IF we did the two weeks with us/two weeks with Ex we'd probably have a provision in there that SD would spend the weekend that DH works with her Mom.

Yes, my post sounds one sided.  All posts are one sided; it's our perception of the situation that's being conveyed.  And yes, there are alot of details I left out because I don't want to get bogged down in the things that have been going on.  I'm mainly looking for others experience with shared parenting and how it's set up.

I appreciate your comments about your shared parenting arrangement and other factors to consider.

[HelpingHands]

I'm not sure what's going on behind the scenes and if there are more issues going on than what's posted. BUT, honestly, it's hard to go from a every other weekend custody/visitation arrangement into an arrangement that rotates the child for 1 or 2 weeks at a time. That's a HUGE step and I'm not sure a judge would go for it.

Yes, spending time with both parents is the best thing for a child. BUT is pulling a child out of her bedroom/home/neighborhood every week for an entire week or two good for her? I'm not being snarky, but asking if YOU as an adult would like to pack your things and move every week or two for an entire week or two worth of time? Yes, my daughter alternated weeks between parents from two months until she was 18 months old. I wouldn't recommend that arrangement for any child.

What I would recommend would be to ask for a very specific "parenting" schedule. Here's an Example:

Child shall be with the father, every Friday(or every other Friday- whichever you want) at the dismissal of school to begin parenting time until Monday morning when school begins. Father or Father's wife, xxx, shall pick child up from school to begin said parenting time and drop child off at school to end said parenting time. The father shall also have child every Wednesday afternoon at school's dismissal  and shall drop the child off at school every Thursday morning. In the event the child is no in school, the mother shall notify father so that he can pick child up from the house at XYZ time.

In addition to the above stated parenting plan, the father shall have the child for any school breaks and extended weekends(spell these particular breaks out in detail- columbus day weekend, labor day weekend, memorial day weekend, mlk weekend, president's day weekend, admin days, winter break, spring break, fall break, etc) beginning at the release of school for said break until school reconvenes at end of break, where father/father's wife shall drop child off at school.

Parents will alternate Holidays: Thanksgiving with Mother in Odd years, while Father has child on Christmas on Odd years. Even years Mother will have child Christmas day and father will have Thanksgiving day. Easter do the same thing for- one year with mom one with dad. or if school has easter and spring breaks seperately, one gets the easter wekend one gets spring break. Spell out the particular times of exchange and place to meet.

Summer visitation: Father shall have the child beginning no earlier than one week following school's dismissal for up to 6 weeks. Father shall make his selection and notify mother of his dates no later than *whatever date*

Phone contact:
Child shall have phone contact with parent whom she isn't with on *these particular dates between these particular hours* The parent that has the child, must make sure to have the child available during those times. In the event the child is NOT available, that parent must initiate the phone contact within *1/2 hr- 1 hr*  of missed call.


Wouldn't this keep the child in her normal routine, giving both parents alot of parenting time with the child, time to do homework with child and be involved in school without completely uprooting her from her normal surroundings for weeks at a time? It gives dad more time with child- in the event there IS a change in circumstances, then dad can show that he is actively involved in her life a great amount of time!


I have a parenting plan that was submitted , mostly of which was entered as an order. If you'd like, I can copy and paste it here and you can view it. It was based on a long distance visitation- however you can modify it to fit your needs. The plan spelled out very specifically what was expected, what to do if it didn't happen(for future contempt purposes). In the end, BM wouldn't follow the specifics and with it being so solid of an order, she had no room for miscommunication excuses keeping her out of hot water. I now have custody as a result of her continuous denial of visitations, both physical visitations and phone contact.

Just my offering~~

[mistoffolees]

OK. Given all of that, you have a couple of options:

1. File for a change in custody to joint custody. Since I still don't see anything that looks like a change in circumstances of that magnitude, it seems like this would be pretty hard.

2. Leave custody alone and file for a revised visitation schedule. Again, I don't see the justification for this.

3. File for a CLARIFICATION of visitation (since it wasn't properly addressed in the original order). Your argument will be that you've tried to clarify visitation and are unable to reach an agreement on all the details. You are therefore proposing this visitation schedule. You're still asking for a lot (the knee-jerk reaction is likely to be that the current EOW is working-- that is, let's clarify anything that's not clearn and put EOW in stone, but why change it significantly? There's a risk here - that you'll get the current arrangement formalized and will never be able to gradually increase your time.

Whichever route you go, I would suggest every other week switches. Everything I see says that you're going to have an uphill battle, anyway, so why complicate it with a custody plan that is unusual? Every judge has seen every other week, so stick with that so you're not coming off as too far outside the box.

While there's no doubt that greater exposure to both parents is better for the kids, the fundamental problem you face is that you agreed to a plan and it seems to be working. Few judges will willingly upset the apple cart in the hope that there might be something better. Unless you can provide more concrete reasons why a change is better for the child, you won't win. Furthermore, unless you can provide evidence of a change in circumstances, you probably won't even be able to present your case.

When your husband is talking with the lawyer, make sure that both sides are completely straight and not pulling punches. The worst thing that can happen is for you go go ahead with court, lose, and then have the lawyer say "I didn't think your chances were very good from the start". I wouldn't even start unless you think you have a very real chance of getting what you want. If you don't, you're probably going to have to play nice with the ex and just try to gradually increase the time together with SD.

[Samson2005]

My state uses a thing called "best interest of the child" to determine custody. It is found in the Illinois Compiled Statutes.

Here, the best interest defined states things like, "(8)"The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child." 750 ILCS 5/602 (8)."

The Best Interest of the Child Defined further states that in the absence of abuse, maximum involvement of both parents is in the Child's Best Interest.

(c) "Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well being of their child is in the best interest of the child..." 750 ILCS 5/602 (c)

Also, The amendments included among the purposes of the Illinois Marriage and Dissolution of Marriage Act are to secure the maximum involvement and cooperation of both parents in the child's welfare. See: 750 ILCS 5/102(7): (7) secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being during and after litigation.

Anything other than 50/50 time with each parent is not maximum involvement and as such is contrary to law.

Working your way toward 50/50 time most certainly is in the child's best interest. If the other parent is opposing you, then they are exhibiting an unwillingness and/or inability to facilitate and encourage your relationship which is contrary to law.

According to the statute, a parent has to be an abusing parent to not have 50/50 time.

I wonder if a parent learning that their court order is contrary to law is a change in circumstance?

[mistoffolees]

I think you'll find that the court didn't violate the law. The law you cited gives a preference. But judges have a huge amount of discretion - and can easily choose to give sole custody if they think that it's in the best interest of the child for any reason.

Furthermore, in this case, the parents agreed on a visitation schedule at the time of the divorce and the court approved it. it's going to be pretty hard to go back 8 years later and say that you don't agree to it and therefore it should be changed.

[MixedBag]

what's the significant change in circumstances that REQUIRES the court's attention to have the daughter live with dad (translation change custody)?

While everything you write makes sense....from personal experience, and from reading Soc's page (geez, for the last ten years), that's where it has to start to get any where in court.

Search Soc's page for change of custody.

You gotta convince the court that there is a NEED for a detailed parenting plan.

And in working out a detailed plan, her attorney is gonna be keeping his/her eye on the fact that at the end of the day, custody (primary residential parent) doesn't change.

Remember, I'm no expert by any means....

[jilly]

Actually there is no visitation schedule in the current order.  If we went strictly by the court order DH would have only seen his DD a couple of times in July...in 1999!!! There was an attachment that set out times/dates/location of visitation for just that one time.  I'm not at home so I'm not absolutely certain of the month but I do recall the visitation being a one shot deal.

I'm telling you, if you read DH's parenting agreement you'd pass out from shock.  It doesn't give him much of anything.  He did get his birthday, Father's Day and two weeks out of the year with his DD.  He has never exercised the two weeks option.

We live in NC and mediation is mandatory so he'll most likely have to do that before proceeding with anything.  Court would only come in to play if they can't agree at mediation.  His appointment with the attorney is to see what his options are and to get an opinion on how, or if, he should proceed with amending the parenting plan.  The attorney has been involved in this case from the beginning and she is well aware of the Ex's antics.  She will also be very truthful with him about his chances.
NC also goes by the best interest of the child standard.

[jilly]

I appreciate your comments MB; and I do realize you're not an expert but you've got the experience and based on some of your responses to other posters, I have respect for your opinion.  :)

I suppose if you look at it from a purely significant change in circumstances point of view, DH probably doesn't have a chance in hades of getting shared custody.  Going to mediation and/or court would just get things more defined.  I do think the court would recognize that there is a need for a more detailed parenting plan.

In the time DH and the Ex have been divorced, he's only gone back to court for CS.  The same judge has been used every time and he wasn't fooled by the Ex so DH has always done as well as can be expected when it comes to CS.  In the beginning, she was stupid enough to make a comment to DH in court that if DH didn't do something she wanted that he wouldn't see his DD.  The judge heard it and put the smack down on her.  I think if we got the same judge for the parenting plan and custody that he would be amenable to the changes.

So, basically, that leaves us with the best interest of the child standard.  And, it would be in SD's best interest to have more time with us than she has had previously.

I really do believe that SD would like to come live with us.  However, there are several issues at play which keep her from expressing this desire.  We've always known that the Ex has demonized DH.  She has used "I'll send you to go live with your Dad" as a threat to SD when she's not acting the way the Ex wants her to act.  DH recently found out, throught talking with the Ex, that SD threw "I'll just go live with my Dad"
in her face.  I believe in the past, the PAS was minimal.  For whatever reason, it is escalating and becoming worse. Or maybe it was like that all the time and it's more noticeable now that SD is older.  KWIM?

SD feels responsible for her Mom and thinks that her Mom needs her to take care of her.  DH believes that if SD came to live with us she would feel like she is abandoning her Mom.  While I agree with that, I also think that SD may be afraid that her Mom would abandon HER and that her MoM would never want to and/or get to see her again.  Who knows, this may be something her Mom has told her.

According to the Ex, SD has been giving her major attitude.  This ain't a good thing because the Ex doesn't like it when you don't go along with what she wants so, as you can imagine, they've been butting heads.  This attitude is also present in SD's interaction with her teacher.  DH and Ex got an e-mail from the teacher on Tuesday that SD had been refusing to do her work that morning and that she'd been giving her attitude.  When the teacher asked her if she needed to call her parents in for a conference about her behavior, SD responded with "I don't care" and rolled her eyes.  Now, there's two arguments that could be presented for this: 1) She was with us for the weekend prior to this incident; or 2) School was out on the Monday before and spending the whole day with her Mom was the cause.   Both are fairly vaild arguments.

SD has told DH that she has no friends at school and that the kids in her class are always picking on her.  One girl in particular seems to take great pleasure in torturing her. This is a recurring theme with SD. She gets frustrated very easily.  When this happens, you can count on one of two things happening: 1) she's going to start crying or 2) she's going to knock the crap out of somebody.  The kids call her a crybaby because she will literally cry at the littlest thing. Why the teachear and/or her Mom haven't addressed the bullying is beyond me.

In years past, the Ex was very involved/concerned with SD's schoolwork.  This year it's a whole new ballgame.  SD is getting letters for not completing work, not turning in her homework and/or talking. (The teacher gives letters like "t" for talking or "h" for no homework or for no parental signature in SD's agenda.)  There have been a couple of times in looking through SD's agenda that her Mom didn't sign off.  There's a signature there but it is quite obvious that it's not her Mom's handwriting.  There are a couple of entries where it is MORE than obvious that SD signed her Mom's name in the agenda.

A couple of months ago DH noticed on SD's math worksheets that she had answers written down but when questioned about how she got the answers she couldn't tell you how she got it. One night DH knew SD hadn't actually done the work and really pressed her on it.  She finally came clean and told him that another kid in after school care had done it for her.  He called the Ex and left a message for her to talk to her about SD cheating.  The Ex never called back.  He calls back the next night and gets Ex on the phone. He's telling her that SD is cheating on her math worksheets, that she doesn't know her multiplication tables, etc.  Ex's response? There's nothing wrong.  She knows her multiplication tables. Thanks for calling.  She could have cared less.

DH had a long talk with SD Wednesday night about the incident at school the day before. (Again, he called the Ex on Tuesday night to talk to her and to SD about this.  Got no answer and no return call.)  They also talked about things going on at her Mom's house.  When DH told Ex that he wanted to have SD come stay with us for the summer.  The "reason" for her saying NO was because: 1) our 4 year old DD is out of control and 2) my oldest DD and my granddaughter live with us and she's not comfortable with them living there.  What??!!!

From what DH could gather from SD, when she comes back from being with us, her Mom grills her about every little thing that went on in our house.  SD is not a morning person. When she is with us, she has to get up earlier than she is used to on the days she goes back to her Mom's house.  She is grumpy as he$$ and it's quite annoying.  I've just learned to ignore it...much like I do with some of the stuff my 4 year old does!  LOL  If you leave them along long enough they'll eventually come around.  THe Ex doesn't see it like that.  In her world, if SD isn't all smiley and happy to see her that means something awful must of happened while she was with her Dad. So SD tells her negative things about DH, me and her sister.  This accomplishes what she wants: her Mom leaves her alone.  DH lit in to SD for how she has been using us as scapegoats.  For what it's worth, she told him she'd never talked bad about my oldest DD and my granddaughter.

She has told her Dad more than once that she doesn't feel like she belongs there; that she's a visitor.  We've both gone out of our way to make her feel like she's part of our family too and that she does belong there.  We just get pushed away.

SD is starting to exhibit several character flaws of her Mom.  Which, as you can imagine, is driving DH up the wall.  She lies, she sneaks around, we've caught her on several times eavesdropping on conversations.  And yes, I realize that alot of this can also be attributed to her being a kid.  But most NORMAL kids don't behave this way all the time.  She has been caught stealing stuff that belongs to her little sister.

The list of things could go on and on, but the above instances are just an example of some of the things going on.  Like I said, the court most likely won't see any of this as a compelling reason to change the current arrangement but something HAS to change so SD can have a fighting chance.  KWIM?

And what's worse, I'm torn about the whole thing.  I don't like her behavior and I don't trust her as far as I can throw her.  There is a part of me that doesn't want her coming in and disrupting the status quo. Plus, her little sister ADORES her, but SD will be mean to her and say mean things to her.  That really gets my knickers in a twist!  But the Mom part of me has a broken heart for this child who is hurting and who needs the love and support of her family.

So, that's some of the story.  Seems like we're damned if we do and damned if we don't.