Pro se Texas Modify P/C order, urgent help needed!!

[tiredofhergames]

Will make this as short and to the point as possible. (Edited for: I realized after I posted I had logged in as my husband, instead of me, I apologize in advance for any confusion!!!)

Seperated '01, divorced '04. In that 3 year period (we did pro se, and TX has the 3 year living apart default), we completely shared custody, etc. WHile I worked, he had son, and vice versa. Final Decree worded so that same schedule can be followed, with Standard TX Visitation if for some reason we couldn't agree.

I was working 2 jobs, on of which I was at til 3 or 4 am 3 or 4 nights a week when we agreed on divorce, custudy, etc. I  agreed to 50/50 with him having final say on residence. Within 3 months of final decree, X moved 50 miles away. Then moved in gf - now wife (not a problem at the time, and only minor issues now - and I will not throw stones as I and my now husband were living together also). WIthin another 2 months the "open parenting plan" went out the window, and he started going strictly by Standard order.

Next step, here and there, if I was there at 6:01 nor 6:03, I would find note on door that they didn't have time to conform to my schedule, therefore they did not wait. On 4 of 6 occasions, I called to let them know and it was agreed to, then I would find note. Would stay in town til 11 or 12, and leave msg on cell phones, home phone, and door to call me so I could pick up son. THreatened him with contempt, it stopped.

Fast forward to last June. X began working 5 p.m. to 5 a.m. Asleep by time son got up, woke around 4 p.m. This was supposed to be 5 days a week, ended up being 7 days more often than not.

Son complaining he didnt see dad, X complaining didn't see son, but had "no choice, I now have 6 mouths to feed" (X's wife has two children of her own, and they had a child together Feb 06) Wife was going to school, graduated as phlebotomist, worked 5 days in June last year, then quit. Discussed modifying custody with X, he would immediately start in on he couldn't afford to pay child support. Agreed to work less hours - this lasted 2 weeks.

July '06, son (age 6 at time) begins sitting in a corner and quietly sobbing for one to three hours when it's time to go back to X's. Even goes so far as to stuff himself in ottoman when X came and I answered door in Sept 06. Had to physically pull him out, and force him to go. (this killed me to do) Again discussed change in custody. X asked me to wait til WInter Break.

Getting son to go back gets worse. He begins to tell me why. Quick run down:
Has to share all clothes, even underwear
Has to share all toys, they are not allowed to claim any as their "own"
3 older boys (3,5,6) have to share same bath
He has to share his bed - step bro decided he wanted son's bed, so they now swap every other night
3 boys , and one infant share a trailer br (10 x 10 in a THREE br trailer)
Describes meals as mainly nachos chips with cheese sauce, or mac and cheese
etc
Gets spanked "alot lot" (this escalated.....when I picked him up in May, and he got in trouble, he curled in ball, screaming and sobbing "i'll do it, i promise, please don't hit me!!" I broke down in tears, had to leave room, husband sat with son for a minute. When I came back, I asked why he thought I would hit him. He said, "When Daddy and (SM) talk like that I get hit with the belt, and it hurts to go to sleep")

Winter Break,get son Xmas eve, is cranky, and acting strange. Will not eat Xmas dinner or desert, complains of "really really bad hurting in my stomach". TOuch him, he screams. Take to ER, he is so compacted that it is back up into esophogas. Calcium deposits also found. Dr. asks son if he eats his veggies. Son tells dr. that "daddy doesn't buy me those, says it costs too much, that's why I like mommy's, she give me tomatoes, carrots, apples....etc" (Costs too much = he nets approx $2800/mo, child support is $174, wife gets a total of $600 or so from other two) Takes next week to get him regular.

Sons begs to live with us, talk to X, he again refuses. Talk to 4 lawyers, can not afford retainer.  I get him to go back only by promising to call everynite.

Talk to X, tell him if he does not agree to modification by end of school, I will file. He blows it off, tells me he's doing "best he can" and that I need to realize that he now has 3 other kids, he can't make special time just for our son.

Begin gathering up all evidence I can from Jan to May. Pick son up in March, he mentions "talking doctor". I call X, he tells me that son has been seeing counselor for 4 weeks, at CPS mandate. I ask why I wasn't informed, he tells me that he hasn't been able to reach me - I talk to son daily, and had seen him 2 weeks before. Call counselor, find out son having emotional outbursts in school, is acting much younger than he is, etc. This is NOT child I see every other week, and am shocked. Teacher had said this had happened in Sept, but had improved. Contact teacher, find out son has been spending most days in bathroom crying, refusing to do work. Go to next session. Counselor tells me later that with me in the room, he is "normal child", but when I left at her request, he reverted to about a 2 year old with only X there.

Call CPS, find out they are being investigate for neglect, but that X's wife has told them that his emotional state stems from "abuse child witnessed in mother's home" WTF???? Have personal knowledge of her 5 year old acting out at home, and they even had him at a damn psychologist for past year!!

Counselor deems that home enviroment isn't allowing my son to develop as an individual, and is not allowed to identify as "independent being, seperate from other children in home, regardless of age." Requires X and wife to "learn how to correctly parent a child to encourage development".

Counselor tells me that son is improving, when asked why, he tells her because his dad told him after school ends, he gets to live with mommy, but only if he "acts better".

may 07 - get phone call from X's wife (have been solely dealing with her for 7 weeks at this point, as X "works too much, and doesnt' have time"), asking if I am coming to get son MOnday after school is released. I agree. Pick him up, ask when they will pick him up, told 6 to 8 weeks. No argument here. Now Aug 2, and X has seen son total of 1 hour on Father's Day, and July 4, 5, 6.

I file pro se July 20. X refuses to discuss, and as of today, "I haven't had time to deal with that yet, too much going on.' Find out that night before I filed, he walked out on job - so now both are unemployed. They move back here, in with wife's gma, approx july 22. X did not tell me or son this until Monday, when I called telling him son has CK pox. X tells me that he can't pick up son Tuesday due to this, as the gma could get it, and so could the baby (now 18 months). He is allegedly starting job tomorrow.

Sees son 6 minutes Tuesday, I went in bedr, left them alone, he left on own. Son upset, "daddy doesn't care about me, all he talks about is SB1, SB2, HB. he didn't even ask if I was ok"

WEdnesday: stops by for 12 minutes, promises son "as soon as you get better, you can see where we are living now" son asks why not now, X says "because what you have can kill gma" as he's walking out door. Now get to deal with freaking out child, scared he's going to die

Thursday: stops by for 10 minutes, as he's leaving, tells me, "now that he's better, I'll probably take him home tomorrow". I politely inform him that as of 6 tomorrow, it is my "scheduled" time. I still am battling with myself on this - do I make son go, or do I follow what X wanted to do for so long - the SOP??

Evidence gathered at this point:

Neglecting to follow through with dental work from last sept that X would not allow me take him to at last minute - now a major cavity, appt next week to fix, as it is now pediatric specialist only.

Came home July 6 with CD dad had burned off, with son's name in X handwriting. First song begins:"F*ck, MotherF*****, F*** You, repeat for next 45 seconds." 2nd song starts out: "I'll F*** You up, something about brains blown out, more expletives." MY SON IS 7!!!! Did not even listen to rest of it, took it away, and put up.

Job and home instability

Teacher's emails

Counselor's emails

No phone calls during entire 60+ days, when son calls, x tells him he's "too busy"

Refusal to take care of child while ill

Denial of visitation numerous times

Failure to inform of psychological probs, CPS, school probs

and more.

Now, my question, is this enough in TX to file for ex parte order? The dental is def neglect, the cd is IMO harmful, living arrangements are not stable.

IF it is, how do I do this? ANy advice appreciated.

[mistoffolees]

I didn't read all of it, but what I did read is enough to recommend that you not do this Pro se. There's too much at stake and too many things that could go wrong.

[tiredofhergames]

I called Texas OAG legal service line, at suggestion of local District Clerk.

Lawyer I talked to told me that since X failed to pick up child at his scheduled time, and cited child's illness as reason he wasn't able to care for him in current living arrangements, it has added even more to my reasons to modify. I was told to file an emergency restraining order against X, preventing him from removing child from my care at this time.

In order to have time to get it all in a row, so to speak, I was told to use his own argument back against him - his current living conditions do not allow him to properly care for child.

Told to contact CPS about all mentioned in first post and more.

Have done so, and now am getting scared. After I went through it all, the call center woman put me on hold for over five minutes. When she came back on, she began asking me things such as: "Has your son ever tried to harm himself by hitting, striking, or worse?" (Answer: Yes, though I didn't see it that way at time - hits himself on head when he gets upset, but only after seeing his father) Advised by CPS to tell law enforcement, if he calls them, that case is under current investigation.

If for some reason, he is suddenly not "too busy" and files contempt on me for keeping him past this Sunday, have been advised for OAG referral lawyer to take all evidence I already have, and use it in court as to why I did not allow father to take him.

Made appt with attorney for Monday morning, temporary restraining order will be filed no later than Monday afternoon.

As I was typing this, X showed up (I minimized screen) trying to take child, told him that this is my scheduled time. When he said he would be back Sunday, I told him I had been advised by attorney and CPS that if home was not able to have child in it while he was ill, it is also not fit for him while he is well. He told me he could take care of him, but only if he isn't sick. I went on that he may still be contagious for another 5 days - per doctor.

Son just came in and told me that "daddy says you won't let me go with him today, but he will be back in two days, and I have to go with him. Do I?"

I explained that was something he didn't need to worry about, and that I had told his dad he was more than welcome to come and see him whenever he wants. (Why the HELL do some parents insist on dragging the kids into things like that?????)

Son accepted this, and is now building with his legos.