proving best interest of child

[ccmidaho]

Idaho

We just got some new news I wanted to run by you. Father trying to get more time with 16 month old son. Parenting plan was vague and called for overnights to begin 12-18 months and increasing amounts of time with father - none of which has happened.  Prior to now, mother has given no reason for not giving more time.

They went to their first mediation session since the parenting plan was put in place a year ago. In mediation, mother basically said the child was a "mess" every time after he had time with his father. She said he won't eat, cries, won't sleep through the night etc. She then went on to say how "sensitive" the child is and even said that it took him two months to adjust to his new day care (he switched about two months ago to a full fledged daycare with other children instead of an in home daycare). Her argument is that basically the child cannot possibly adjust to overnights and will never be ready for substantial time with the father until he is 8-10 years old.

After a year and a half and months of offering different step up schedules to the mother, this is the very first time we've heard any of this. I spend a substantial amount of time with the child when he is with the father and I have never seen such a well adjusted kid. In the last year, I've seen him cry maybe 5-7 times and never for more than a minute or two. He never exhibits any anxiety and rarely exhibits fussiness. I've seen him refuse food one time with his father and it happened last week. We've checked with his new daycare and they say he's adjusted great, no behavioral problems, he plays with the other kids, naps when he's supposed to etc.

Based on all this, I believe either the mother is lying or SHE is the one who is sensitive rather than the child. We already know the mother is extremely emotional and paranoid about the child. Past daycares have complained that she calls several times a day and is overly critical of care to the point they are offended. This combined with all the uncooperative and hostile treatment she has exhibited towards father leads me to believe this became her "argument" that she is going to take to court and its not really true.

Here are my questions:

1. In this situation, does she have the burden of proof that spending time with the father is detrimental to the childs emotional well-being as she claims? Or does he have to prove that its not detrimental?

2. This suddenly seems like a really tough argument to overcome because it seems hard to prove anything - do you have any suggestions?

3. We believe that an evaluator will be favorable and will ask that the court order one - Is it reasonable to expect the evaluator to spend a substantial amount of time observing the child after he returns from a visit with the father, to the point of staying overnight to see how the child is?

Thanks for your help and advice.

[socrateaser]

>Here are my questions:
>
>1. In this situation, does she have the burden of proof that
>spending time with the father is detrimental to the childs
>emotional well-being as she claims? Or does he have to prove
>that its not detrimental?

You state that the parenting plan suggests overnights begin after 12-18 months, and that it hasn't happened. Seems reasonable that the parent preventing this from occuring bears the burden of proving that it shouldn't. However, you have to file a motion to clarify the parenting orders, so it will fall to you to allege something that will convince the judge that there is an issue to address.

>
>2. This suddenly seems like a really tough argument to
>overcome because it seems hard to prove anything - do you have
>any suggestions?

Yes, I would talk to the various daycare providers, who you claim have found that the mother difficult, and ask if they would be willing to testify to this in court. If they say yes, you need to get a sworn affidavit from each. That will get you past the first hearing. Then if the mother demands a trial on the issue, you will need to subpoena the witnesses to appear and testify to what they stated in their affidavits.

>
>3. We believe that an evaluator will be favorable and will ask
>that the court order one - Is it reasonable to expect the
>evaluator to spend a substantial amount of time observing the
>child after he returns from a visit with the father, to the
>point of staying overnight to see how the child is?

The evaluator will set the ground rules. Your best strategy is to love your kid, while behaving normal and well-adjusted, and let the evaluator see that love returned. Everyone who attempts to control the conditions of an evaluation will fail, because that is precisely what the evaluator looks for as a danger sign. Don't try to control or predict -- just be yourself.

[skye]

http://www.parenthoodweb.com/articles.html?article_id=987

it is very normal for a child to act differently after seeing the visiting parent ..please read this article...