Again on Modification

[justme73]

Please remember, Modification was not my choice. My attorney felt we must 'counter'.

In Florida (duval county) our final judgment was signed and ordered in may 2002, granting joint legal and physical custody, with 50/50 rotating schedule and no child support...based on consent. i also allowed my ex the status of 'primary parent' because i was advised that special wording in our agreement makes our arrangement completely joint/shared.

In covering all my bases in attempting to put together my case of 'substantial change in circumstances', these are the items my case is currently revolving around:

A. Medical Neglect: approximately 6 months following my daughter's diagnosis of asthma, my ex decided without my knowledge that suddenly he no longer agreed with the pediatricians assessment of her condition and that he would no longer administer preventative medication or that alike... regarding that diagnosis.

Though I realized that her asthma had increased in severity and frequency, I did not know she was not receiving the medication 50% of the time (while at dad's house). I also learned from my daughter that he had been smoking inside the house.

after many attempts to reason with him and taking her to the docter whenever she returned from his house wheezing or coughing, the pediatrician one day asked her a few questions (ie have you been taking your asthma medication at your dad's house?, does your dad smoke?, does he smoke inside the house?) the doctor was not happy with the answers.

without my knowledge, the pediatrician contacted the department of children and famlies to make a report of medical neglect, which of course my ex accused me of making.

this particular battle over the asthma continued for 8 months or so. I made an appointment with a pulmonologist and with my ex present, the lung specialist told him our daugher does in fact have asthma. he set her up on a treatment plan, which again was not followed.

i took her for allergy testing. mostly because he and i both know she is allergic to cats, but he insists on keeping many of them in his home (up to 10 indoor cats at one time in the last year)  this triggers my daughters asthma.

so again, in order to clarify to him the importance of this, and his denial of the initial allergy testing (he didn't like that allergist), i arranged for my daughter to get RAST testing and set up an appointment with an independed allergist with the ex present. again, the allergist confirmed she is allergic to cats and that an environment containing many indoor animals (especially cats) would effect her asthma.

B. Living environement/conditions (incommodious and unhealthy): Basically, this is in regards to the multiple indoor animals (including up to 10 cats and one large indoor dog) in the past year. not to mention, since his remarriage there has been an addition of 4 people to the rented home that has very limited space (1,007 sq.ft. to be exact).

my son slept on the floor for the first 8 months of their marriage and now his bedroom technically is the laundry room, in that it contains the washer and dryer... which seems pretty hazardous. my daughter shares a room with a 16 year old step-sister and 9 year old step-sister.... a bedroom that is approx. 11x12.  the bathroom that all 6 of them share is 6x7 in size.

I beleive these conditions are detrimental to the children's health and individual growth. on the other hand, my husband and i purchased a new home with approx. 2,000 sq. ft. and the children have their own bedroom and bathroom. we installed wood flooring throughout the home to reduce allergens and have no cats or indoor pets.

C. I don't know how to explain this one other than calling it 'alienation', though i do not like that word... sounds too cliche.

for two years following the entry of the final judgment, I took on all responsibilities regarding the children (ie doctor appointments, dentist, monthly haircuts, trimming nails, etc.... most everything). i made most all payments on medical bills and purchased all prescriptions, even provided them to him (have proof of all of this).

when my ex remarried he began forcefully removing me from those duties. things that i actually enjoy doing.

he unilaterally changed the children's dentist and refused to reveal the identity or location of the new dentist... so that his wife would begin to take them instead. actually, his reasoning was that it was more convenient. what could be more convenient than he had NEVER taken them to the dentist, he had been the one that chose that dentist in the first place and it was two blocks from his office. point being, even now, he has NEVER taken them.

on the many other maintenance items... he has requested that i not do those things, that his wife will take them for their haircuts, doctor appointments, etc..

i suppose, because i had filed contempt charges against him he wished to rush and appear as if he were taking on the responsibilities/maintenance of the children. i am not sure what the motive is.

he no longer communicates with me... except via his wife, which has created more conflict. things like 'i never discussed that subject with him' or he will double back on an agreement that she and i have reached, etc...

i have spent alot of time at my children's school, volunteering until my ex and his wife complained about my presence in the music department with his step-daughter. with no foundation they put a lot of pressure on the principal to keep me from participating and helping in my area of expertise.

my ex has increasingly interfered with the children's relationship with the me by word. other than the many times he has told me 'they aren't your children, you just get to visit them', 'i am the children's only true parent', much name calling (which i have on tape), etc.

he has told the children that he and his wife, step children are their 'only family' and that my husband and i are not their family.  he has told them that my mother hates him, so they asked her 'why do you hate my daddy?' and say that 'daddy said you do'.

D. the last situation, i cannot get much information on. From what i understand, they (my ex and new wife) have many problems with the 16 year old step-daughter. a mutual friend hinted that i needed to try to get information about that, because she understood that it could also be legal issues and that she is in psychological care.

so besides the fact that difficulites with a teenager would distract their focus away from my children, also the potential that they are exposed to a rebelious teenager that could be involved in drugs. but since she is underage, i cannot get that information about that.

so...
1. how do you feel these factors weigh in modification?

 (we are seeing an attorney/custody evaluator in a couple of weeks)

2. On most everything I have described, I can prove the situations. what needs to be emphased the most?  what is trivial or will not make a difference?

basically, i want to know where my amunition lies.

3. if not 'alienation', what would you say the situation i described could be called?  Is that important?

4. any other suggestions?

ps. sorry so long

[socrateaser]

>Please remember, Modification was not my choice. My attorney
>felt we must 'counter'.
>
>In Florida (duval county) our final judgment was signed and
>ordered in may 2002, granting joint legal and physical
>custody, with 50/50 rotating schedule and no child
>support...based on consent. i also allowed my ex the status of
>'primary parent' because i was advised that special wording in
>our agreement makes our arrangement completely joint/shared.
>
>In covering all my bases in attempting to put together my case
>of 'substantial change in circumstances', these are the items
>my case is currently revolving around:
>
>A. Medical Neglect: approximately 6 months following my
>daughter's diagnosis of asthma, my ex decided without my
>knowledge that suddenly he no longer agreed with the
>pediatricians assessment of her condition and that he would no
>longer administer preventative medication or that alike...
>regarding that diagnosis.
>
>Though I realized that her asthma had increased in severity
>and frequency, I did not know she was not receiving the
>medication 50% of the time (while at dad's house). I also
>learned from my daughter that he had been smoking inside the
>house.

A diagonsis of asthma combined with a smoking parent, if this is a change from the circumstances that existed at the time of the original order, would qualify as a substantial change in circumstances, in my view. Be aware that your proof of each element must be "clear and convincing," i.e., not just more credible than the other party's proof, but substantially certain to have occured.

>
>after many attempts to reason with him and taking her to the
>docter whenever she returned from his house wheezing or
>coughing, the pediatrician one day asked her a few questions
>(ie have you been taking your asthma medication at your dad's
>house?, does your dad smoke?, does he smoke inside the house?)
>the doctor was not happy with the answers.
>
>without my knowledge, the pediatrician contacted the
>department of children and famlies to make a report of medical
>neglect, which of course my ex accused me of making.
>
>this particular battle over the asthma continued for 8 months
>or so. I made an appointment with a pulmonologist and with my
>ex present, the lung specialist told him our daugher does in
>fact have asthma. he set her up on a treatment plan, which
>again was not followed.
>
>i took her for allergy testing. mostly because he and i both
>know she is allergic to cats, but he insists on keeping many
>of them in his home (up to 10 indoor cats at one time in the
>last year)  this triggers my daughters asthma.
>
>so again, in order to clarify to him the importance of this,
>and his denial of the initial allergy testing (he didn't like
>that allergist), i arranged for my daughter to get RAST
>testing and set up an appointment with an independed allergist
>with the ex present. again, the allergist confirmed she is
>allergic to cats and that an environment containing many
>indoor animals (especially cats) would effect her asthma.

Subpoena the pediatrician to testify. Subpoena the allergist, too.

>
>B. Living environement/conditions (incommodious and
>unhealthy): Basically, this is in regards to the multiple
>indoor animals (including up to 10 cats and one large indoor
>dog) in the past year. not to mention, since his remarriage
>there has been an addition of 4 people to the rented home that
>has very limited space (1,007 sq.ft. to be exact).
>
>my son slept on the floor for the first 8 months of their
>marriage and now his bedroom technically is the laundry room,
>in that it contains the washer and dryer... which seems pretty
>hazardous. my daughter shares a room with a 16 year old
>step-sister and 9 year old step-sister.... a bedroom that is
>approx. 11x12.  the bathroom that all 6 of them share is 6x7
>in size.
>
>I beleive these conditions are detrimental to the children's
>health and individual growth. on the other hand, my husband
>and i purchased a new home with approx. 2,000 sq. ft. and the
>children have their own bedroom and bathroom. we installed
>wood flooring throughout the home to reduce allergens and have
>no cats or indoor pets.

The pets are an issue, the sisters are not, and I would deemphasize issues with other children.

>
>C. I don't know how to explain this one other than calling it
>'alienation', though i do not like that word... sounds too
>cliche.
>
>for two years following the entry of the final judgment, I
>took on all responsibilities regarding the children (ie doctor
>appointments, dentist, monthly haircuts, trimming nails,
>etc.... most everything). i made most all payments on medical
>bills and purchased all prescriptions, even provided them to
>him (have proof of all of this).
>
>when my ex remarried he began forcefully removing me from
>those duties. things that i actually enjoy doing.
>
>he unilaterally changed the children's dentist and refused to
>reveal the identity or location of the new dentist... so that
>his wife would begin to take them instead. actually, his
>reasoning was that it was more convenient. what could be more
>convenient than he had NEVER taken them to the dentist, he had
>been the one that chose that dentist in the first place and it
>was two blocks from his office. point being, even now, he has
>NEVER taken them.
>
>on the many other maintenance items... he has requested that i
>not do those things, that his wife will take them for their
>haircuts, doctor appointments, etc..
>
>i suppose, because i had filed contempt charges against him he
>wished to rush and appear as if he were taking on the
>responsibilities/maintenance of the children. i am not sure
>what the motive is.
>
>he no longer communicates with me... except via his wife,
>which has created more conflict. things like 'i never
>discussed that subject with him' or he will double back on an
>agreement that she and i have reached, etc...

If you can convincingly prove that he no longer communicates with you that is a substantial change.
>
>i have spent alot of time at my children's school,
>volunteering until my ex and his wife complained about my
>presence in the music department with his step-daughter. with
>no foundation they put a lot of pressure on the principal to
>keep me from participating and helping in my area of
>expertise.

Pressure is not a restraining order. If you allow yourself to be pushed around, you will be pushed around. Don't make a case of this -- it's not relevant.

>
>my ex has increasingly interfered with the children's
>relationship with the me by word. other than the many times he
>has told me 'they aren't your children, you just get to visit
>them', 'i am the children's only true parent', much name
>calling (which i have on tape), etc.
>
>he has told the children that he and his wife, step children
>are their 'only family' and that my husband and i are not
>their family.  he has told them that my mother hates him, so
>they asked her 'why do you hate my daddy?' and say that 'daddy
>said you do'.

If you have disparagements on tape that were lawfull recorded and can be admitted into evidence, then I'd definitely put emphasis on this. If you don't have admissible recordings, then you are wasting your time and the court's, and potentially damaging your case by engaging what the court will view as a frivolous exercise.

>
>D. the last situation, i cannot get much information on. From
>what i understand, they (my ex and new wife) have many
>problems with the 16 year old step-daughter. a mutual friend
>hinted that i needed to try to get information about that,
>because she understood that it could also be legal issues and
>that she is in psychological care.
>
>so besides the fact that difficulites with a teenager would
>distract their focus away from my children, also the potential
>that they are exposed to a rebelious teenager that could be
>involved in drugs. but since she is underage, i cannot get
>that information about that.

If you haven't any proof, then you're wasting your time. Drop the issue.

>
>so...
>1. how do you feel these factors weigh in modification?

See comments above.

>
> (we are seeing an attorney/custody evaluator in a couple of
>weeks)
>
>2. On most everything I have described, I can prove the
>situations. what needs to be emphased the most?  what is
>trivial or will not make a difference?

See above
>
>basically, i want to know where my amunition lies.
>
>3. if not 'alienation', what would you say the situation i
>described could be called?  Is that important?

I wouldn't call it anything. I would state that the other parent is creating a hostile atmosphere between the parents and that this causes the child distress, and then I'd show how, and let the court decide, for example, whether this asthmatic condition is a physiologoical response to the child's emotional pain of being in the middle of a parental war zone.
>
>4. any other suggestions?

Save your pennies. Your expert witness fees are gonna be huge.

[justme73]

1. i don't know how to prove he smokes in the house.. other than her pediatrician testifying that my daughter told him her father does. he has said he quit smoking... my daughter says he still smokes.

 also, i stopped by his house to drop off a prescription for my son and saw a full ashtray on the front porch and the whole room reaked of smoke. i thought i could take a photo of the front of the house and then of the full ashtray.

would a photo be proof, if he were to contend to the custody evaluator or judge that he no longer smokes?  and do i need to try to place a newspaper in the photo to document the date?

>The pets are an issue, the sisters are not, and I would
>deemphasize issues with other children.

2. I did not mean issues with the other children. I was trying to say that they do not have room for the children, since he remarried (ie 6 people and a large indoor dog in a 1,007 sq.ft. home, not to mention my son sleeps in a room with washer and dryer). and positive improvement would be that my husband and i purchased a large new home with 4 bedrooms... they have their own bedroom.

>If you have disparagements on tape that were lawfully recorded
>and can be admitted into evidence, then I'd definitely put
>emphasis on this. If you don't have admissible recordings,
>then you are wasting your time and the court's, and
>potentially damaging your case by engaging what the court will
>view as a frivolous exercise.

3. I do have disparagements directed at me on tape that he left on voicemail or my answering machine. in fact in one of the recordings where he is using vulgarity and yelling, i believe you can hear the children in the background... in the car with him. would it be helpful to take the tape to an audio specialist to clear it up so that it is proof he was doing this in front of the children?

4. Frivolous exercise... should i use those same thoughts when dealing with the custody evaluator (we should be going in a couple of weeks)?  that if i do not have proof, don't mention it?

>Save your pennies. Your expert witness fees are gonna be
>huge.

I am really hoping it will not come down to trial. I hope to settle this in mediation following the custody evaluation, so i am focusing on preparing 'clear and convincing' information for that evaluation. we have prepared a scrapbook with photographs of activities along with our weekly schedule of activities, medical and dental documents that i took them to the appointments, haircut receipts for the past 3 years etc...

I just don't want to bring up anything to the custody eval. that may hurt my evaluation.  I want to avoid the cost of trial and expert witnesses.

5. any last bits of advice for the evaluation?

[justme73]

Please remember, Modification was not my choice. My attorney felt we must 'counter'.

In Florida (duval county) our final judgment was signed and ordered in may 2002, granting joint legal and physical custody, with 50/50 rotating schedule and no child support...based on consent. i also allowed my ex the status of 'primary parent' because i was advised that special wording in our agreement makes our arrangement completely joint/shared.

In covering all my bases in attempting to put together my case of 'substantial change in circumstances', these are the items my case is currently revolving around:

A. Medical Neglect: approximately 6 months following my daughter's diagnosis of asthma, my ex decided without my knowledge that suddenly he no longer agreed with the pediatricians assessment of her condition and that he would no longer administer preventative medication or that alike... regarding that diagnosis.

Though I realized that her asthma had increased in severity and frequency, I did not know she was not receiving the medication 50% of the time (while at dad's house). I also learned from my daughter that he had been smoking inside the house.

after many attempts to reason with him and taking her to the docter whenever she returned from his house wheezing or coughing, the pediatrician one day asked her a few questions (ie have you been taking your asthma medication at your dad's house?, does your dad smoke?, does he smoke inside the house?) the doctor was not happy with the answers.

without my knowledge, the pediatrician contacted the department of children and famlies to make a report of medical neglect, which of course my ex accused me of making.

this particular battle over the asthma continued for 8 months or so. I made an appointment with a pulmonologist and with my ex present, the lung specialist told him our daugher does in fact have asthma. he set her up on a treatment plan, which again was not followed.

i took her for allergy testing. mostly because he and i both know she is allergic to cats, but he insists on keeping many of them in his home (up to 10 indoor cats at one time in the last year)  this triggers my daughters asthma.

so again, in order to clarify to him the importance of this, and his denial of the initial allergy testing (he didn't like that allergist), i arranged for my daughter to get RAST testing and set up an appointment with an independed allergist with the ex present. again, the allergist confirmed she is allergic to cats and that an environment containing many indoor animals (especially cats) would effect her asthma.

B. Living environement/conditions (incommodious and unhealthy): Basically, this is in regards to the multiple indoor animals (including up to 10 cats and one large indoor dog) in the past year. not to mention, since his remarriage there has been an addition of 4 people to the rented home that has very limited space (1,007 sq.ft. to be exact).

my son slept on the floor for the first 8 months of their marriage and now his bedroom technically is the laundry room, in that it contains the washer and dryer... which seems pretty hazardous. my daughter shares a room with a 16 year old step-sister and 9 year old step-sister.... a bedroom that is approx. 11x12.  the bathroom that all 6 of them share is 6x7 in size.

I beleive these conditions are detrimental to the children's health and individual growth. on the other hand, my husband and i purchased a new home with approx. 2,000 sq. ft. and the children have their own bedroom and bathroom. we installed wood flooring throughout the home to reduce allergens and have no cats or indoor pets.

C. I don't know how to explain this one other than calling it 'alienation', though i do not like that word... sounds too cliche.

for two years following the entry of the final judgment, I took on all responsibilities regarding the children (ie doctor appointments, dentist, monthly haircuts, trimming nails, etc.... most everything). i made most all payments on medical bills and purchased all prescriptions, even provided them to him (have proof of all of this).

when my ex remarried he began forcefully removing me from those duties. things that i actually enjoy doing.

he unilaterally changed the children's dentist and refused to reveal the identity or location of the new dentist... so that his wife would begin to take them instead. actually, his reasoning was that it was more convenient. what could be more convenient than he had NEVER taken them to the dentist, he had been the one that chose that dentist in the first place and it was two blocks from his office. point being, even now, he has NEVER taken them.

on the many other maintenance items... he has requested that i not do those things, that his wife will take them for their haircuts, doctor appointments, etc..

i suppose, because i had filed contempt charges against him he wished to rush and appear as if he were taking on the responsibilities/maintenance of the children. i am not sure what the motive is.

he no longer communicates with me... except via his wife, which has created more conflict. things like 'i never discussed that subject with him' or he will double back on an agreement that she and i have reached, etc...

i have spent alot of time at my children's school, volunteering until my ex and his wife complained about my presence in the music department with his step-daughter. with no foundation they put a lot of pressure on the principal to keep me from participating and helping in my area of expertise.

my ex has increasingly interfered with the children's relationship with the me by word. other than the many times he has told me 'they aren't your children, you just get to visit them', 'i am the children's only true parent', much name calling (which i have on tape), etc.

he has told the children that he and his wife, step children are their 'only family' and that my husband and i are not their family.  he has told them that my mother hates him, so they asked her 'why do you hate my daddy?' and say that 'daddy said you do'.

D. the last situation, i cannot get much information on. From what i understand, they (my ex and new wife) have many problems with the 16 year old step-daughter. a mutual friend hinted that i needed to try to get information about that, because she understood that it could also be legal issues and that she is in psychological care.

so besides the fact that difficulites with a teenager would distract their focus away from my children, also the potential that they are exposed to a rebelious teenager that could be involved in drugs. but since she is underage, i cannot get that information about that.

so...
1. how do you feel these factors weigh in modification?

 (we are seeing an attorney/custody evaluator in a couple of weeks)

2. On most everything I have described, I can prove the situations. what needs to be emphased the most?  what is trivial or will not make a difference?

basically, i want to know where my amunition lies.

3. if not 'alienation', what would you say the situation i described could be called?  Is that important?

4. any other suggestions?

ps. sorry so long

[socrateaser]

>Please remember, Modification was not my choice. My attorney
>felt we must 'counter'.
>
>In Florida (duval county) our final judgment was signed and
>ordered in may 2002, granting joint legal and physical
>custody, with 50/50 rotating schedule and no child
>support...based on consent. i also allowed my ex the status of
>'primary parent' because i was advised that special wording in
>our agreement makes our arrangement completely joint/shared.
>
>In covering all my bases in attempting to put together my case
>of 'substantial change in circumstances', these are the items
>my case is currently revolving around:
>
>A. Medical Neglect: approximately 6 months following my
>daughter's diagnosis of asthma, my ex decided without my
>knowledge that suddenly he no longer agreed with the
>pediatricians assessment of her condition and that he would no
>longer administer preventative medication or that alike...
>regarding that diagnosis.
>
>Though I realized that her asthma had increased in severity
>and frequency, I did not know she was not receiving the
>medication 50% of the time (while at dad's house). I also
>learned from my daughter that he had been smoking inside the
>house.

A diagonsis of asthma combined with a smoking parent, if this is a change from the circumstances that existed at the time of the original order, would qualify as a substantial change in circumstances, in my view. Be aware that your proof of each element must be "clear and convincing," i.e., not just more credible than the other party's proof, but substantially certain to have occured.

>
>after many attempts to reason with him and taking her to the
>docter whenever she returned from his house wheezing or
>coughing, the pediatrician one day asked her a few questions
>(ie have you been taking your asthma medication at your dad's
>house?, does your dad smoke?, does he smoke inside the house?)
>the doctor was not happy with the answers.
>
>without my knowledge, the pediatrician contacted the
>department of children and famlies to make a report of medical
>neglect, which of course my ex accused me of making.
>
>this particular battle over the asthma continued for 8 months
>or so. I made an appointment with a pulmonologist and with my
>ex present, the lung specialist told him our daugher does in
>fact have asthma. he set her up on a treatment plan, which
>again was not followed.
>
>i took her for allergy testing. mostly because he and i both
>know she is allergic to cats, but he insists on keeping many
>of them in his home (up to 10 indoor cats at one time in the
>last year)  this triggers my daughters asthma.
>
>so again, in order to clarify to him the importance of this,
>and his denial of the initial allergy testing (he didn't like
>that allergist), i arranged for my daughter to get RAST
>testing and set up an appointment with an independed allergist
>with the ex present. again, the allergist confirmed she is
>allergic to cats and that an environment containing many
>indoor animals (especially cats) would effect her asthma.

Subpoena the pediatrician to testify. Subpoena the allergist, too.

>
>B. Living environement/conditions (incommodious and
>unhealthy): Basically, this is in regards to the multiple
>indoor animals (including up to 10 cats and one large indoor
>dog) in the past year. not to mention, since his remarriage
>there has been an addition of 4 people to the rented home that
>has very limited space (1,007 sq.ft. to be exact).
>
>my son slept on the floor for the first 8 months of their
>marriage and now his bedroom technically is the laundry room,
>in that it contains the washer and dryer... which seems pretty
>hazardous. my daughter shares a room with a 16 year old
>step-sister and 9 year old step-sister.... a bedroom that is
>approx. 11x12.  the bathroom that all 6 of them share is 6x7
>in size.
>
>I beleive these conditions are detrimental to the children's
>health and individual growth. on the other hand, my husband
>and i purchased a new home with approx. 2,000 sq. ft. and the
>children have their own bedroom and bathroom. we installed
>wood flooring throughout the home to reduce allergens and have
>no cats or indoor pets.

The pets are an issue, the sisters are not, and I would deemphasize issues with other children.

>
>C. I don't know how to explain this one other than calling it
>'alienation', though i do not like that word... sounds too
>cliche.
>
>for two years following the entry of the final judgment, I
>took on all responsibilities regarding the children (ie doctor
>appointments, dentist, monthly haircuts, trimming nails,
>etc.... most everything). i made most all payments on medical
>bills and purchased all prescriptions, even provided them to
>him (have proof of all of this).
>
>when my ex remarried he began forcefully removing me from
>those duties. things that i actually enjoy doing.
>
>he unilaterally changed the children's dentist and refused to
>reveal the identity or location of the new dentist... so that
>his wife would begin to take them instead. actually, his
>reasoning was that it was more convenient. what could be more
>convenient than he had NEVER taken them to the dentist, he had
>been the one that chose that dentist in the first place and it
>was two blocks from his office. point being, even now, he has
>NEVER taken them.
>
>on the many other maintenance items... he has requested that i
>not do those things, that his wife will take them for their
>haircuts, doctor appointments, etc..
>
>i suppose, because i had filed contempt charges against him he
>wished to rush and appear as if he were taking on the
>responsibilities/maintenance of the children. i am not sure
>what the motive is.
>
>he no longer communicates with me... except via his wife,
>which has created more conflict. things like 'i never
>discussed that subject with him' or he will double back on an
>agreement that she and i have reached, etc...

If you can convincingly prove that he no longer communicates with you that is a substantial change.
>
>i have spent alot of time at my children's school,
>volunteering until my ex and his wife complained about my
>presence in the music department with his step-daughter. with
>no foundation they put a lot of pressure on the principal to
>keep me from participating and helping in my area of
>expertise.

Pressure is not a restraining order. If you allow yourself to be pushed around, you will be pushed around. Don't make a case of this -- it's not relevant.

>
>my ex has increasingly interfered with the children's
>relationship with the me by word. other than the many times he
>has told me 'they aren't your children, you just get to visit
>them', 'i am the children's only true parent', much name
>calling (which i have on tape), etc.
>
>he has told the children that he and his wife, step children
>are their 'only family' and that my husband and i are not
>their family.  he has told them that my mother hates him, so
>they asked her 'why do you hate my daddy?' and say that 'daddy
>said you do'.

If you have disparagements on tape that were lawfull recorded and can be admitted into evidence, then I'd definitely put emphasis on this. If you don't have admissible recordings, then you are wasting your time and the court's, and potentially damaging your case by engaging what the court will view as a frivolous exercise.

>
>D. the last situation, i cannot get much information on. From
>what i understand, they (my ex and new wife) have many
>problems with the 16 year old step-daughter. a mutual friend
>hinted that i needed to try to get information about that,
>because she understood that it could also be legal issues and
>that she is in psychological care.
>
>so besides the fact that difficulites with a teenager would
>distract their focus away from my children, also the potential
>that they are exposed to a rebelious teenager that could be
>involved in drugs. but since she is underage, i cannot get
>that information about that.

If you haven't any proof, then you're wasting your time. Drop the issue.

>
>so...
>1. how do you feel these factors weigh in modification?

See comments above.

>
> (we are seeing an attorney/custody evaluator in a couple of
>weeks)
>
>2. On most everything I have described, I can prove the
>situations. what needs to be emphased the most?  what is
>trivial or will not make a difference?

See above
>
>basically, i want to know where my amunition lies.
>
>3. if not 'alienation', what would you say the situation i
>described could be called?  Is that important?

I wouldn't call it anything. I would state that the other parent is creating a hostile atmosphere between the parents and that this causes the child distress, and then I'd show how, and let the court decide, for example, whether this asthmatic condition is a physiologoical response to the child's emotional pain of being in the middle of a parental war zone.
>
>4. any other suggestions?

Save your pennies. Your expert witness fees are gonna be huge.

[justme73]

1. i don't know how to prove he smokes in the house.. other than her pediatrician testifying that my daughter told him her father does. he has said he quit smoking... my daughter says he still smokes.

 also, i stopped by his house to drop off a prescription for my son and saw a full ashtray on the front porch and the whole room reaked of smoke. i thought i could take a photo of the front of the house and then of the full ashtray.

would a photo be proof, if he were to contend to the custody evaluator or judge that he no longer smokes?  and do i need to try to place a newspaper in the photo to document the date?

>The pets are an issue, the sisters are not, and I would
>deemphasize issues with other children.

2. I did not mean issues with the other children. I was trying to say that they do not have room for the children, since he remarried (ie 6 people and a large indoor dog in a 1,007 sq.ft. home, not to mention my son sleeps in a room with washer and dryer). and positive improvement would be that my husband and i purchased a large new home with 4 bedrooms... they have their own bedroom.

>If you have disparagements on tape that were lawfully recorded
>and can be admitted into evidence, then I'd definitely put
>emphasis on this. If you don't have admissible recordings,
>then you are wasting your time and the court's, and
>potentially damaging your case by engaging what the court will
>view as a frivolous exercise.

3. I do have disparagements directed at me on tape that he left on voicemail or my answering machine. in fact in one of the recordings where he is using vulgarity and yelling, i believe you can hear the children in the background... in the car with him. would it be helpful to take the tape to an audio specialist to clear it up so that it is proof he was doing this in front of the children?

4. Frivolous exercise... should i use those same thoughts when dealing with the custody evaluator (we should be going in a couple of weeks)?  that if i do not have proof, don't mention it?

>Save your pennies. Your expert witness fees are gonna be
>huge.

I am really hoping it will not come down to trial. I hope to settle this in mediation following the custody evaluation, so i am focusing on preparing 'clear and convincing' information for that evaluation. we have prepared a scrapbook with photographs of activities along with our weekly schedule of activities, medical and dental documents that i took them to the appointments, haircut receipts for the past 3 years etc...

I just don't want to bring up anything to the custody eval. that may hurt my evaluation.  I want to avoid the cost of trial and expert witnesses.

5. any last bits of advice for the evaluation?

[socrateaser]

>would a photo be proof, if he were to contend to the custody
>evaluator or judge that he no longer smokes?  and do i need to
>try to place a newspaper in the photo to document the date?

Both good ideas.

>
>>The pets are an issue, the sisters are not, and I would
>>deemphasize issues with other children.
>
>2. I did not mean issues with the other children. I was trying
>to say that they do not have room for the children, since he
>remarried (ie 6 people and a large indoor dog in a 1,007
>sq.ft. home, not to mention my son sleeps in a room with
>washer and dryer). and positive improvement would be that my
>husband and i purchased a large new home with 4 bedrooms...
>they have their own bedroom.

Always a crap shoot to emphasize that your living environment is superior, because the judge may decide to try equalize by making you pay more support so that the other parent can hopefully improve their living envronment.

>3. I do have disparagements directed at me on tape that he
>left on voicemail or my answering machine. in fact in one of
>the recordings where he is using vulgarity and yelling, i
>believe you can hear the children in the background... in the
>car with him. would it be helpful to take the tape to an audio
>specialist to clear it up so that it is proof he was doing
>this in front of the children?

This is good stuff.

>
>4. Frivolous exercise... should i use those same thoughts when
>dealing with the custody evaluator (we should be going in a
>couple of weeks)?  that if i do not have proof, don't mention
>it?

Always emphasize that you are interested in the child's welfare and nothing else. You don't care how the other parent lives or what he/she does -- all you care about is that the child's best interests are being served. So, for example, with cigarettes, you can say, "Our child (NEVER say "my" child -- always "our") has documented asthma and he is routinely exposed to cigarette smoke in the other home and here's some proof." That way, you are not directing your comments at the other parent's smoking. The evaluator gets to make that conclusion independently.

Never say "He refuses to talk to me." Instead, say, "We've always had difficulty communicating about important issues, and I'm at a loss as to how to improve the situation."

Political correctness at its finest! Total crap, but the more objective and calm you appear, and the more you appear to be only interested in your child, and not maintaining a war zone, the better your chances of getting the nod from the evaluator.

[justme73]

thank you for your help!

[justme73]

ok. we met with our attorney. the prognosis is not good. since technically my ex has 'primary residential status' when we consent to final judgment, he is only pleading a modification in visitation. but since we countered with modification for 'primary', we bear the 'extraordinary burden of proof'.

it sounded to us like even she is desperate to find something more on him and does not feel like what we do have is enough. this is looking like a lose/lose situation. if i don't fight, i lose.... and i haven't much to fight with if i do.

the only other point my attorney brought up is that our previous custody evaluator, who was a psychiatrist (during divorce) has been dubbed a nut job.. the courts won't use him any longer. i suppose she is taking a stab in the dark, but is wondering that since his reputation has deminished, if on those grounds we can request a new trial (like can be done in criminal court).

certainly it would be difficult to do and would open up so many other cases to be re-trial, but it was a thought.

1. if we do bear the 'extraordinary burden of proof', do you think we have a chance with the items i described?

2. what do you think about requesting a new trial based on the demise of the previous custody evaluator's reputation? i have never heard of it being done.... except in criminal cases.

i don't know what to do here. i feel like i am going to lose my babies and i know it is going to harm them as well. it is difficult to just have faith in them and that they know the truth and will hold their father accountable one day.

[socrateaser]

>1. if we do bear the 'extraordinary burden of proof', do you
>think we have a chance with the items i described?

There is no such thing as an "extraordinary" burden of proof. The burden is "clear and convincing" evidence, i.e., evidence that is substantially certain to show a change of circumstances affecting the child's best interests.

>
>2. what do you think about requesting a new trial based on the
>demise of the previous custody evaluator's reputation? i have
>never heard of it being done.... except in criminal cases.

Waste of time. Your case is asthma in child aggravated by father's demonstrated inability to quit smoking.

If you want to try to lower your burden of proof, then I would argue that your stipulated court order made the other parent "primary," not because it was in the child's best interests to do so, but rather as a mere formality to deal with the various technical requirements of state and federal law, and that the court should not give this order substantive effect, because to do so would neither serve the children's best interests, nor actually affect the parties original intent.