Motion to change when there is no change ?

[mango]

Dear Soc,

Since age 5, (now 11) we have had 3 rounds of custody with DH & his ex over his daughter. Each resulting in a 50/50 joint parenting order. First two plans had neither parent listed as residential, (listed the school) but this final one lists mother, but states she has to stay put in her town or it goes to father automatically without a hearing. Basically grounding her to one location due to several moves on her part.

Mother gets a 2 year itch, and usually causes a reason for change (her moving). But since she can't move now, she has threatened (and will act on) Filing for modification due to "parenting differences", and "child's wishes".

She is now making the claim that DH is too hard on daughter for grades, and claims general unhappiness of the child. (Which is not true.)

Child does talk negative with BM about us & our home (?), for love and approval from her BM, but in reality is very happy in DH home. (jeckle & hyde thing). My DH says she does it to survive at her BM's.

BM will state "wishes of the child", and put her in front of the judge. (the child will do and say whatever mom asks her to, because she has been manipulated over the years.)

She is now 11.

Our attorney says we SHOULD fight for full custody on the basis that the mother is mentally destroying the child. But PAS is extremely hard to prove, an unlikely to change the order if proven, only extreme cases. (We really don't want to go another round for same results, it's emotionally and financially draining on our family. We have 3 kids together, which are half siblings of SD)

My questions are:

1.) Can BM file for new parenting order when there is not a real change in circumstances?

2.) Can we just state that we like the plan (as is) and do not wish to change it. And have her motion thrown out?

3.) Or will we have to prove she is happy? Is there anything we can do to prepare for the "unhappiness" claim. Like video of her having fun, journals, etc. Do we need to prove that she is happy? Seems silly.

4.) If we did fight on the grounds of PAS, is there even a chance of custody change?

Thanks.  :-)

[socrateaser]

>>1.) Can BM file for new parenting order when there is not a
>real change in circumstances?

Depends on the law of the State with jurisdiction over custody. Can't answer, without more info.

>
>2.) Can we just state that we like the plan (as is) and do not
>wish to change it. And have her motion thrown out?

I don't know. I think that you should consider moving for dismissal on grounds that the other parent is a "vexatious litigant," i.e., that she keeps coming back just to annoy you, with no real substantive change in circumstances, and that you should get attorney fees and costs of suit to discourage her from continuing this behavior.

>
>3.) Or will we have to prove she is happy? Is there anything
>we can do to prepare for the "unhappiness" claim. Like video
>of her having fun, journals, etc. Do we need to prove that she
>is happy? Seems silly.

Being unhappy is not necessarily a claim, unless the reason for the unhappiness is that you are affirmatively acting against the child's interests. You could ask for the child to be evaluated by a psychologist, and/or you could ask for the child to be tested with a polygraph to determine how much of this unhappiness is related to which parent.

>
>4.) If we did fight on the grounds of PAS, is there even a
>chance of custody change?

As I'm fond of saying, "I don't read tea leaves."