Again on Modification

[justme73]

I guess I am nervous about the evaluation. I feel very comfortable with our documentation, presentation for 'best interest of the children', etc...  Our situation really could be read either way by the evaluator or judge for that matter.

I have gone over this with our attorney.... my ex and i have joint legal and joint physical custody ('shared parental responsibility' and 50/50 rotation). I have been the primary caregiver before and since the final judgment was ordered and have proof.

But because he was named primary in our 'consent to final judgment', this could create more of a burden of proof for us. although, if the evaluator or judge sees our situation as equal, with 'primary' really having no meaning, then we may have a chance.

I have been digging for more infomation and thru another attorney, found out that our evaluator is a rookie. she has only been practicing for two years. i was advised to taylor our package and what we say to that... in that we would need to spoon feed her information with legal grounds to support  choosing us.

It turns out that the evaluator is also involved in a 50/50 custody situation with her own children and it works... mostly because she and her ex work side by side and cooperate. maybe that helps me, since i can show that for us it is not working and we do not get cooperation.

1. our attorney sounds desperate... like she wants a smoking gun. is our battle that difficult?

2. any advice on 'spoon feeding' the evaluator with info based on guidelines and statutes to help her build a foundation for choosing us, etc.?

3. also, in questions the evaluator asks us, like 'what was the cause of the separation' ?  I answered with general things, like 'lack of communication','lack of trust', etc....  should i stay away from saying he is addicted to pornography and women?  that was part of the reason.

4. how about ' list five best things you can say about the other parent as a parent'?  I think my attorney was joking when she said 1. he has a job, 2. he has transportation....  The one thing i can think of is that in comparison to many 'absent fathers' he is a good dad.

5. also, previously you stated that i should not mention the stepmoms over involvement. meaning that my ex does not communicate with me any longer and communicating with her has created more problems (ie miscommunications, he renigs on our agreements, etc...)

my daughter's doctor even requested that she stay out of the issues. that the medical discussions should be between my ex and I.

the reason i am mentioning this, is i have also heard via another attorney, who knows our judge well, that type of situation is his 'pet peave'. that he has actually chewed out people in court for not taking active involvement in communication, pickups, etc.. and allowing their new spouse to do the work.

so, how would i present it without bashing her or them?  just to get it in the report for the judge to read. maybe on the 'list five worst things about the other parent as a parent'  mention that he does not actively participate in those things but has his wife do it?

6. would my having another child help/hurt our case? this whole thing has been drawn out a long time... and now it starts, with the evaluation, which is the meat of the case. and our new baby is due in 4 1/2 weeks which would be right in the middle of the eval.  the kids are very excited.

7. any other thoughts that may help us?

[socrateaser]

>1. our attorney sounds desperate... like she wants a smoking
>gun. is our battle that difficult?

You left an escape clause in your existing judgment that will permit the judge to walk away from the hearing on a technicality. In a perfect world the judge would accept that your agreeing to making your husband custodial parent was not intended to affect the burden of proof in subsequent actions, but as you never actually wrote this down, you are now subjected to the possibility of it being used against you. So, your attorney is worried about something that he/she believes is a wild card.

>
>2. any advice on 'spoon feeding' the evaluator with info based
>on guidelines and statutes to help her build a foundation for
>choosing us, etc.?

Not really. This sort of thing always backfires. I would concentrate on loving my kid and letting the evaluator see that in your interplay.

>3. also, in questions the evaluator asks us, like 'what was
>the cause of the separation' ?  I answered with general
>things, like 'lack of communication','lack of trust', etc....
>should i stay away from saying he is addicted to pornography
>and women?  that was part of the reason.

Well, saying that someone is "addicted" is conclusory. That is what I would stay away from. If you have "facts" then provide the facts that you can prove and let the evaluator decide the conclusions.

Can you prove that your ex was addicted to porn? If you can't prove it, then you're wasting everyone's time by bringing it up, because it just makes you seem like an angry, vindictive ex.

Before you commit anything to writing, you need to consider who will ultimately read your work. That person is the JUDGE! Facts are not the same as conclusions. See to it that when you write something down, that what you write is a fact that is provable with objective evidence from a credible disinterested source, or DO NOT write it down.

>
>4. how about ' list five best things you can say about the
>other parent as a parent'?  I think my attorney was joking
>when she said 1. he has a job, 2. he has transportation....
>The one thing i can think of is that in comparison to many
>'absent fathers' he is a good dad.

If you died tonight, could your ex do a reasonable job raising your children, in your absence? If your answer to this question is yes, then you need to completely reevaluate your position on the entire issue of custody. Too many parents become tied up in trying to prove that they are the better parent. Great, but all that's necessary to raise a child is being a good parent -- being better is a decision for the custody evaluator to make. I guarantee that if you say nothing but bad things about the other parent, you will be viewed as hostile and unreasonable, and it will bite you right on the ass.

>
>5. ...

so, how would i present it without bashing her or them?  just
>to get it in the report for the judge to read. maybe on the
>'list five worst things about the other parent as a parent'
>mention that he does not actively participate in those things
>but has his wife do it?

You state FACTS. I.e., "On ??/??/?? I called X and asked Y, and never received a response." Then you list every damn time that there was no communication. You DO NOT say, "The other parent is non communicative." That is YOUR OPINION -- it is not a fact. You state the facts, and let the evaluator draw the opinion that the other parent is non communicative.

>
>6. would my having another child help/hurt our case? this
>whole thing has been drawn out a long time... and now it
>starts, with the evaluation, which is the meat of the case.
>and our new baby is due in 4 1/2 weeks which would be right in
>the middle of the eval.  the kids are very excited.

I think it's irrelevant. However, it is a fact that the evaluator should be aware of.

>7. any other thoughts that may help us?

Change your mind set. You have a chip on your shoulder because you believe that you are "right," and the other parent is "wrong."

As I repeatedly state, there is NO RIGHT OR WRONG in court. There is only the law and the facts. If you give the facts and those facts show that the other parent has affirmatively and substantially harmed the kids, then you will have made your case, otherwise, you lose. Period.

Laypersons are especially concerned with right and wrong, and it always messes them up. Don't let your value system mess you up. Presenting facts the prove your case are all that matters. Right and wrong is irrelevant.

[justme73]

maybe you misunderstood...  no chip here.. really. in my previous posts i explained that i did not want this modification. i was forced to counter for primary since he filed to remove all visitation.  he filed the modification in retaliation of my contempt pleadings.

I would have been perfectly happy to remain with the 50/50 rotation. i only filed for contempt to get cooperation, uphold my rights and try to work toward truly 'shared parenting', because i know it can be done.

i truly believe 50/50 would be best for our children. i know they really want to spend substantial time with both of us. but this is the end of the joint physical custody... the judge will never go there again. and it is really sad for the children, because they are the ones that will suffer.

I do want to thank you in advance for all of your help. you have been very informative.

[socrateaser]

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