Is now the time to Modify Custody?

[missmyson]

I have had primary residential status, "custody", for 3 months now on temporary emergency orders, and the mother has been assigned supervised visitation by her parents at their home.  She admitted in court that she has been diagnosed with bi-polar, depression, anxiety disorders and that she is struggling.  Twice her father told the judge that she wasn't around the house much, and he was not happy with the situation.  She actually went into court last time trying to argue that she should have unsupervised visitation becasue the environment at her parents house had become too hostile for her to see her son there (and thought that would help her case).

She has not seen her son for a month now.  She lives 5 minutes away.  She can pick him up with her parents whenever she wants, but has chosen not to.  She has told me that the place she lives is not suitable for a toddler, and I have learned from her father that it is a co-op, where strangers rent bedrooms form the landlord and share the kitchen and common areas.  

The judge said that he wanted to see reports from doctors before he would feel safe with allowing her unsupervised visitation.  

Now that a full month has passed without her seeing the child- IS NOW THE TIME TO FILE FOR MODIFICATION OF CUSTODY?  

I cannnnot afford an attorney.

Please help.

[mistoffolees]

I would at least talk with an attorney. You can usually get the initial consultation free.

If there's any way to get the money, I strongly advise having an attorney handle this. There are too many things that can go wrong that you might not be able to fix later.

Having said that, my gut says that I would file fairly soon - unless the judge put a time limit on the temporary orders. If he did, you might need to wait.

[MixedBag]

IMHO -- wait just a bit longer until temp has been for 6 months or no contact for waaay long than just a month.

Actually the "no contact" I wouldn't even try to use that -- seen many parents go without contact for years and then come back.

Isn't there a mother here who said "Dad wasn't around for 5 years, came back, and now she wants to marry and move and is afraid of being ordered to leave the child with dad?" situation

[missmyson]

That doesn't seem right at all.  You say you have seen many parents go without contact for years and then come back- but I am talking about her being the Primary Residential Parent.  A Primary R.P. can't go without contact for years.  If they did, you wouldn't even use this in court?  I don't know if you understood my question.  

Do I have to show a "sustatial change in circumstances" has had a negative effect on the child?  If so, this would be difficult to prove, since he is only 19 months old.  The only negative effect would be that he has lost his mother, as she rarely even sees him.  He can't be interviewed about this, however.  He hasn't suffered from this otherwise, becasue he hasn't been in her care.  His granparents and I shared caretaking for a couple of months, then I was given Primary on a temporary order back in July.  The temporary has no time limit- if this matters.  

Please, someone tell me that it is relevant in court that the Primary Residential Parent hasn't seen the child in a month.  

[MixedBag]

But right now, under the temp order, she is no longer the primary residential parent.

She is the non-residential parent.

And this situation has been going on for just  few months, not years.

You're not working under orders anymore where she is the primary residential.

IMHO -- The major hurdle has been accomplished or has already happened.

Now you need to (again IMHO), wait just a little bit longer to show that the situation is good and remains good for the child.

[MixedBag]

globalgem's story....should be on this part of the site just a few down from this thread.

There's a CP whose NCP was out of the child's life for a long time, came back, established a relationship, and now (IMHO) CP can't move away without a fight in court.

[missmyson]

I read it. Thank-you.

I guess my problem is that I don't understand the law regarding temporary orders (emergency, at that).  She seems to think that all she had to do is bring paperwork from a doctor saying she is better, and she can have the child back.  She might also have to tell the judge that she has suitable housing, as I know she is in a co-op, and her parents should attest to that in court.  But maybe not, since the judge made no finding in that area.  The judge only expressed concerns over her mental instability at the time of the temporary order, and ordered her to permanently be in an alcohol treatment program.  

At any time she could decide that she wants him back, find a doctor who will say she is well, and the child would be thrown into an unacceptable situation.  Is this true?

Or, am I now the Primary custodial parent until she proves that the child would be better off changing back to her?

I feel like I should do something soon because I have a good case right now.  The next time she is going to be smarter about things.  She will not let me know about all of her problems in the future.  Her parents may go back to her side when they realize that the only way they will ever be able to retire ( they take care of her other child, who is 5) is by helping her secure both children so that she will have enough support money to have her own apartment.  

I don't know how to proceed because I don't know what I have to prove in court.  Do I just prove that circumstances have changed, and I the child would be better off in my care?  Or, do I have to prove more detrimental things about the mother by subpeoning psychiatrists, family, etc...

[MixedBag]

there is no cut and dry answer to court.

Previous cases that have been decided by the Supreme Court of your state give you a clue IF the factors are all the same.

Don't know why you became the primary residential parent.

You know your situation the best....if you (and maybe your attorney) think that these last 3 months are a good indication of the future, then file.

Usually if a good "temp" situation lasts longer, then the better your chances are at keeping things that way.

[IndigoMama]

I would absolutely go ahead and file for permanent custody. It will take months to get into court anyway and by that time it will have been the six months the other poster was talking about. We filed for emergency temp custody and at the same time filed for permanent. We had the hearing for temp and set a later date for permanent. The permanent hearing process is seperate from the temporaray. I would ask for regular alcohol and drug testing to be done to make sure she is staying clean. It is true that a judge will put things back the way they were if she cleans up her act under temp custody. However the longer your child is in your custody the more likely it is to retain that custody. I would consult an attorney about your options. Check into legal aid. And if you still need to represent yourself because you don't qualify some attorneys will work with you to give you advice on how to handle things in court, file things etc.. for a lower fee. I would check into all of your options right now. And the more physical evidence you have (ie: paper trail, police records, mental health records, medical records, phone records, etc... the more credible your case will be.)

[mistoffolees]

>I would absolutely go ahead and file for permanent custody.
>It will take months to get into court anyway and by that time
>it will have been the six months the other poster was talking
>about.

While I agree with you, I believe it's worth discussing with an attorney. If he files today, his ex can immediately take action to try to change the situation in the months before the final hearing occurs. It's possible that by waiting, he might be able to prevent or weaken some of her possible options.

This is one of those questions where a good local attorney is worth their weight in gold. In this case, they might be able to prevent a mistake rather than just patching one up later.