Going Back To Court...UPDATED

[MixedBag]

you have a PM because EX#2 and Camilla are still here printing and killing trees

[backwardsbike]

Hi Jilly.  I don't post to much anymore, but i used to be quite active here about two years ago.  I know alittel of your story.

I am a NCM and have dealt with some of the issues you are hainvg with your SD.  I am a mom to four children.  Basically, I'm other to al of them but a have a 17 DS and 14 DD who are NC and an 8 DS and 4 DD who are my Dh's and mine.

My ODD has pushed my YDS down the stairs, stolen his toys and taken them home, gathered "evidence" from our home for her DD.  PAS is huge, and if I read right its a concern for you too.

I have been totally unable to chage the custody order in my case.  My X has been in contempt, had to have CYS tell him that if he didn't fill DD's allergy med perscription they would take action adn I had to petiton for a custody mod just to gethim to put medcially necesary braces on DD's teeht.  The judge had admitted that X hates my guts adn beelives its affecting the kids but still refuses to change the order. The one thing the judge felt stringly about was that iI had helped my DS get a job in amovie therater.  he was only allowed ot work on my weekends.  And his dad mad ehim late for work becasue he wouldn't allow him to come into my custody 30 minutes early on my Every other Friday evenings.  Fianlly the theater said, either you work Every weekend and get here on tim eor quit.  I htought for sure that the judge would oder some sort of change when X still refused to support the job.  Nope!  X succeeded in getting son t quit the job and the judge ust let it slide.

I had several very creative paretning plans that would have been fair adn not put X out but he wouldn't agree and the judge said he didn't have to.

If I were you, I'd start reading Divorce Poison and I would read it til the cover fell off.  It sounds like you are dealing with a como of PAS and poor parenting by mom.  But the judge doesn't care.  Maybeif youallow SD to fail in school the judge might consider educational neglect- personlly, I've neverhad the sotmach for that. I couldn't sacrifice my childto "prove" that the X is in this solely to collect CS.

[jilly]

Thanks for the response backwardsbike.  I've followed some of your trials and tribulations too.  I'm the one that told you to beat your ODD's a$$ for the medical record fiasco.  LOL  (For the record: I do believe in spanking but not an actual beating.  That's just the Southern girl coming out in me!)

I do have the book Divorce Poison and have read the first couple of chapters.  I stopped reading it because it didn't really seem to apply to us at the time.  I just think that now that SD is older it's becoming more apparent.  KWIM?

I don't know how this is all going to turn out.  We may not have any success in changing things as they are now.  If that happens, I guess we'll just have to do the best we can with what we do have.

[jilly]

PM'd you back :)

[Jade]

>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.
>


How old is the child in question?  The courts will take that into consideration.  

While you say that there is no compelling reason why the Dad can't have his child for the summer, the same can be said for CP.  There is no compelling reason why the CP can't have her child for part of the summer.  

I just don't see a judge changing an established parenting plan unless the CP is not following the established parenting plan or the child isn't thriving.  

[Jade]

>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.
>

That is complete BS.  50/50 isn't always in the child's best interest.  Just because a parent opposes 50/50 physical custody doesn't mean that they are exhibiting an unwillingness to facilitate a relationship with the other parent.

[Davy]

Please re-read the wording of the statue.

How could any loving and nuturing parent consider a 50/50 presumption to be COMPLETE BS ??

[Jade]

>Please re-read the wording of the statue.
>
>How could any loving and nuturing parent consider a 50/50
>presumption to be COMPLETE BS ??
>
>
Because not every child responds well to 50/50 physical custody.  The presumption shouldn't be 50/50, but what is in the child's best interest.  

[mistoffolees]

>>Please re-read the wording of the statue.
>>
>>How could any loving and nuturing parent consider a 50/50
>>presumption to be COMPLETE BS ??
>>
>>
>Because not every child responds well to 50/50 physical
>custody.  The presumption shouldn't be 50/50, but what is in
>the child's best interest.  
>
>

I'm not sure it's quite that simple. As I read it, the requirement is that it HAS to be whatever is in the child's best interest.

It's just that they're presuming that 50:50 is in the child's best interest unless someone can give a reason why it should be different. While that's not perfect, I don't think it's terribly unreasonable. It all comes down to how high the burden of proof is to suggest something other than 50:50.

Look at it this way:
If you have reason to believe that 50:50 is not in the child's best interest, you'd be suing for custody, anyway, even without this statute. That means you'd have to provide a great deal of evidence justifying your position. As long as the standard of proof isn't unreasonably high, the same evidence should win your case even with a presumption fo 50:50.

The fact is that there's always some presumption. In the old days, that presumption was that the mother got custody unless the father could meet a pretty high standard of proof that she was unfit. This particular law simply says that if no one can prove otherwise, the default is 50:50 instead of the mother getting custody.

To me, that's a good thing.

[Jade]

>>>Please re-read the wording of the statue.
>>>
>>>How could any loving and nuturing parent consider a 50/50
>>>presumption to be COMPLETE BS ??
>>>
>>>
>>Because not every child responds well to 50/50 physical
>>custody.  The presumption shouldn't be 50/50, but what is in
>>the child's best interest.  
>>
>>
>
>I'm not sure it's quite that simple. As I read it, the
>requirement is that it HAS to be whatever is in the child's
>best interest.
>
>It's just that they're presuming that 50:50 is in the child's
>best interest unless someone can give a reason why it should
>be different. While that's not perfect, I don't think it's
>terribly unreasonable. It all comes down to how high the
>burden of proof is to suggest something other than 50:50.
>
>Look at it this way:
>If you have reason to believe that 50:50 is not in the child's
>best interest, you'd be suing for custody, anyway, even
>without this statute. That means you'd have to provide a great
>deal of evidence justifying your position. As long as the
>standard of proof isn't unreasonably high, the same evidence
>should win your case even with a presumption fo 50:50.
>
>The fact is that there's always some presumption. In the old
>days, that presumption was that the mother got custody unless
>the father could meet a pretty high standard of proof that she
>was unfit. This particular law simply says that if no one can
>prove otherwise, the default is 50:50 instead of the mother
>getting custody.
>
>To me, that's a good thing.


The presumption is going to make it difficult to prove.  Which is wrong.  If my ex were to try and get 50/50 should the state I live in be stupid enough to enact a similar law, I would be able to not have it apply to me as there was domestic violence on his part.  But if there weren't, it would seriously traumatize my 5 year old to be forced into 50/50 physical custody.  My 7 year old would handle it better, but still not be happy about it.  

If it weren't for the existence of domestic violence and an already established custody order, I would be told that my kids would adjust (which is what I was told about my then 4 year old, who has never had an overnight away from me until last Sept., having overnight visits).  Well, it's been several months and my 5 year old doesn't want to see her father because she is afraid of having overnight visits.  She isn't adjusting.  She still sees her father because it is important that she have a relationship with him and my ex cares enough about her well-being that he hasn't had a full week-end with her in 2 months.  We are hoping that now Grandma and Grandpa are back from Florida, she will do better as she is always excited to see them.

The law isn't a good thing for the simple reason that it doesn't take into consideration the individuality of children.  And in really small children, it does not provide the stability that they need.  

I believe very strongly that the presumption should be that the primary caretaker (regardless of gender) should be the one who gets primary custody.  It provides more stability for children during a time of turmoil.