Custody Modification to Favor BF

[iLUVmySD]

(Sorry this is so long.  I tried to break it down and shorten as much as possible.  This case is just too complicated.)

Here are the facts:

My SD 5 has been living with us since March of 2004.  Her BM sent her to live with her father and I because the BM no longer had the money to take care of my SD and because BM is cronically ill.

History:

The BM has full custody of my SD.  The order was effective Sept. 2000 and was done in Carson City County of Carson City, Nevada. The order is very vague and does not specify in great detail what rights my husband has.  Here's what it says:

"Defendent is found to be the father of the said minor child by admission.  The defendant's name is on the child's birth certificate.

The parties have had shared custody from time of birth to present.  There is no custodial order, thus mother is custodial parent by operation of law until further order of the court."

Note: My husband raised her from the two weeks old to almost 2 years old.  She was born Nov. 1999.  Even after the order was effective the BM did not pick up her daughter, instead she left her with BF for the majority of the time until he decided to move to Arizona with me in August of 2001.  All the while she was expecting child support payments for the child she didn't even have most of the time.

The order goes on to talk about child support, medical insurance, and payment methods.  It also states that
"This order may be reviewed every (3) years and is subject to future modifications, pursuant to NRS 125B.145."

It does not make any mention of visitation or what rights my husband has to his child.  This means that we have been walking on eggshells with the BM and taking whatever time we can get with her, no matter what the cost.

Present Situation:

So when the BM sent SD here to Arizona to live with BF and I, she stated that it was for a "visit" and she still required my husband to pay his child support of $300 per month (in addition to actually taking care of his daughter).

SD has been back to Nevada to visit her BM, sister, and brother, a couple of times over the past year, once for a month, and once for a couple of weeks.  Both of which we paid for entirely.

Now, BM has had an operation to help her feel better which has apparently worked for the moment.  This past week she emailed me saying that she wanted SD back in June, after her and her new boyfriend (she was divorced 3 weeks ago) buy a house.  (Since last November BM has been homeless and living with her mom, uncle, and two kids in a two bedroom duplex.  BM also just told me that her new boyfriend just moved in there too.)  BM wants SD back just in time for SD to start kindergarten.

Sending my SD back concerns us for a few reasons:

1. BM is still not stable financially.  She is always stating that she is broke and cannot even afford to buy half of the ticket for herself to come here to visit her daughter.  (We offered to pay the other half.)

2. BM is not physically stable.  She has stated to me in email that she has been too sick to take care of her 3 children and that's why we have my SD.  (BM had the gastric bypass surgery about 3 years ago.  She did not take the required iron supplements to help her blood level stay normal. Her blood level dropped to 8 pints, which means she probably should have died.  She has managed to raised it to 11 pints, after extensive hospital stays.  This operation she had recently is supposed to help, but even she said that SD could be back in Arizona within 2 weeks of going back to Nevada if she gets sick again.  This is all in email.)

3. The BM's gastric bypass surgery has had some devastating mental effects on SD.  When SD first got to Arizona, SD would throw up after eating at least 4 times a week.  SD was 4 years old then!  The BM who was obese before the gastric bypass would comfort her and tell her that that is what happens when you eat too much, and SD had only eaten like 1/4 of a pancake.  Everytime BM saw SD, after SD had been staying in Arizona for awhile, BM would lift up her shirt and check to see if SD was getting too fat.  BF and I have come a long way with SD in the time she has been here developing healthy eating habbits, and we don't want SD to go back there for fear of SD ending up with an eating disorder for the rest of her life.


We now want to take BM to court for joint custody with SD's primary residence being in Arizona.  

We want to change the jurisdiction to Arizona since that is where the child has been living and because it would be harder for the BM to fight it here. The Uniform Child Custody Jurisdiction Enforcement Act states that jurisdiction can be changed after the child has resided in new location for over 6 months.  She has been here for a year.

Also the BM still lives in Nevada, but she lives in a different county than the original order was filed,  so the original court does not have jurisdiction even if SD still lived with BM.  The new order would have to be in Douglas County.

BF, SD, our son and I are moving into our new 3 BD/2 BA house on 3/31.  Both children will have there own room and share a bath.  SD has been attending preschool, but is starting a new school on 4/1 that has an excellent pre-school program that should prepare her for kindergarten here.  SD also attends gymnastics on a weekly basis and we are also looking into starting her on karate and soccer.  BM has never paid a dime for any of it.  We are still paying her $300 a month.  We have also secured health insurance for my SD besides what BM carries because it did not work in Arizona, although we pay monthly for BM's insurance for SD also.

Here are my questions:

1. We have been shopping for lawyers and they all seem to think different things about the case.  Some think it seems fairly simple and ask for a $1500 retainer, and others ask for a $10,000 stating that it would be a lot of work.  What do you think the about the complexity of the case based on the history, our present situation and what we want to gain in court?

2. What would you say is a reasonable retainer in this case?

3. What should our minimum experience requirement for a lawyer be to succeed in our case? i.e. should we go with someone with less or more experience, we really can't afford too much.  
(I currently go to the Unversity of Arizona full time and can only work 20 hours per week, my husband is the one who provides for all of us right now.  This will be the case until I graduate Dec. 2005 which will be too late to change this order.)

4. Do you think that filing for joint custody in Arizona is the right way to proceed?

5. Do you think that we could/would need to try to prove BM and unfit mother due to BM's cronic illness and SD's eating disorder?  

6.Also SD's 15 year old half-brother just got out of drug/alcohol rehab not too long ago.  Would/Should that come into play to help the primary residence of SD to be Arizona?


Thanks for your time and patience.

[socrateaser]

>Here are my questions:
>
>1. We have been shopping for lawyers and they all seem to
>think different things about the case.  Some think it seems
>fairly simple and ask for a $1500 retainer, and others ask for
>a $10,000 stating that it would be a lot of work.  What do you
>think the about the complexity of the case based on the
>history, our present situation and what we want to gain in
>court?

If the child has resided in the jurisdiction for more than six months, is enrolled in school, has friends, is well-adjusted, etc., then I believe that you can win, and obtain a temporary restraining order keeping the child with you in the jurisdiction.

However, you will have to submit to a custody eval, and that will probably run at least $2,500, I could see the legal fees runing $5K, and if there's a hearing required in NV to get the court to waive jurisdiction, then by the time you're done, $10K is not an unreasonable figure.

Based on your facts, it would appear that the other parent is not in a position to fight, because she doesn't have enough money, so more than likely the matter will be settled by negotiation long before a trial occurs, which will substantially lower your costs.

>2. What would you say is a reasonable retainer in this case?

Depends on how hungry I am as an attorney. $1,500 is a sucker play in my opinion. The important question is how well the attorney knows the judges in the jurisdiction and how many of these types of cases the attorney has handled. This is the best way to lower your costs.

>
>3. What should our minimum experience requirement for a lawyer
>be to succeed in our case?

I would make certain that whatever retainer you pay out is fully refundable to the extent that you have not incurred actual fees, so that if the case settles early, the attorney doesn't get to keep the money, even though he/she didn't actually do any work.

>4. Do you think that filing for joint custody in Arizona is
>the right way to proceed?

No, I think that you should file for sole custody. The mother has effectively abandoned the child, and has extorted child support from you in order to permit you to maintain custody. I would take an extremely adversarial position, based upon the facts.

>
>5. Do you think that we could/would need to try to prove BM
>and unfit mother due to BM's cronic illness and SD's eating
>disorder?  

No, I think that you will win, as long as you can afford the custody eval and legal fees.

>6.Also SD's 15 year old half-brother just got out of
>drug/alcohol rehab not too long ago.  Would/Should that come
>into play to help the primary residence of SD to be Arizona?

Practically everything is relevant to a custody determination, as long as it is reasonably related to having an effect on the child's best interests. So, yes.

PS. You need to file a petition for custody and for child support IMMEDIATELY. At the moment, the mother can show up at your door and take the child and there wouldn't be a damn thing you could do to stop her. Your only protection is filing the petition and requesting a temporary restraining order.

[iLUVmySD]

A couple more questions:

1. Should we find a lawyer in Arizona or Nevada or both?

2. What is the step by step procedure that we will go through with regard to the Arizona and Nevada courts?

Thanks.

[socrateaser]

>A couple more questions:
>
>1. Should we find a lawyer in Arizona or Nevada or both?

You could do either. It would be simpler to file a motion to modify custody in NV, because it would be unnecessary for the court to determine the appropriate jurisdiction, before ruling on custody. So, that would probably save you money in legal fees, but it would also increase your costs in terms of appearing at the hearings (driving, flying, motels, etc.) and obtaining a custody evaluation, because two different evaluators would be necessary and they would need to coordinate their reports/efforts and the AZ evaluator would have to be paid to appear in NV (motel, airfare, etc.), although you could have a video deposition in AZ and use that in the NV court.

If you file a petition for custody in AZ, then you will need to prove that the child has no longer any significant connection to NV, and that no substantial evidence exists in NV regarding the issues before the court.

Based on your posts, I'd say that this will not be difficult, but it is possible that a NV court will want to hold a hearing before relinquishing jurisdiction, in which case you will need a NV attorney for that hearing, thus two attorneys, if only temporarily.

But, if you succeed, then the other parent will face the cost of a custody evaluator in her jurisdiction, and the cost of that evaluator appearing at trial. Also, you will reduce your cost of appearing, etc.

I can't give you a difinitive re the better choice. You will have to determine how you want to spend your money. If it were me, I would probably pick NV, because there would be no counterargument over jurisdiction, and we could get right to the custody issue.

I would still ask the NV court for a restraining order so that you can maintain the status quo of your having custody of the child.
>
>2. What is the step by step procedure that we will go through
>with regard to the Arizona and Nevada courts?

You're asking me to teach you how to practice law. This is too far out of scope. I can help with California and Oregon Civil procedure, because I have experience in both court systems. I have no experience in either NV or AZ, and I don't have time to learn either jurisdiction's local rules. The BASIC first step for NV would be to file a motion/petition to modify custody, and simultaneously file a motion/Order to show cause for emergency temporary custody of the child. Then you serve the pleadings on the other parent, and away you go.

[iLUVmySD]

Thanks this helps for a starting point...now all we have to do it come up with the money!