Mediation Coming soon

[midwayusa]

The ex and I have finally agreed on a mediator. My attorney said the mediator talked to each of the attorneys to get a feel for what each side is after. My attorney told him we were after joint shared custody with as near equal time as possible.

The mediator said her attorney and her were ok with the equal time but that she wanted to be designated as primary. I believe she wants to move my son many hours from here and thinks that if she is designated primary she will be able to do it. Her reason for moving is she can't afford to live here any more.

Right now we have joint shared custody with equal time. It has been in effect for roughly 7 weeks now and is working wonderfully. It was awarded because we lived only a mile apart and all other things were in place. We were communicating ok concerning the kids and the judge commended us for that.

Shortly after the shared custody was awarded and temporary child support was set, the communication stopped. Within one month of moving out of our home, she moved again. She only moved 10 miles but has changed school districts by doing so.

All I have ever asked for was equal time with my 2 1/2 year old son and her son from her first marriage. Her son and I were very close but she has kept him from me all summer. He has said all along that he wanted to spend time with me. Her and her family claim that he hasn't wanted to see me. I find it hard to believe but that is irrelevent as I have no legal grounds to even talk to him.  

 I have documentation of lies and deception. Some of this documentation is in the form of a court transcript. Her attorney, on her behalf, told the court that as long as the older boy wanted to spend time with me he could. Shortly after the shared custody ruling she stopped letting him see me. He has told me that he wants to see me and spend time with me.

My attorney and I feel that based on a lot of her recent behavior that I should go for custody. There is a lot more to her and her behavior that I haven't listed. I don't think she has the best interest of her kids at heart. I also don't think I have a chance of getting custody even though she is wrong.


1. I know that I don't want her designated as primary but what kind of power does she have if this is awarded later by the court?

2. How do the Kansas courts look upon moves?

3. Is her financial situation compelling enough reason to move?

4. Based on her move and some of the other stuff listed above what are the odds of the court taking away the shared custody?

5. How do we now decide where our son goes to school when he reaches that age?

6. Should she be able to choose when it wasn't my choice that she move to a different school district?

7. WIll her keeping the older boy from me despite saying in court I could see him help my case concerning my son or will it matter at all?

[socrateaser]

>The ex and I have finally agreed on a mediator. My attorney
>said the mediator talked to each of the attorneys to get a
>feel for what each side is after. My attorney told him we were
>after joint shared custody with as near equal time as
>possible.
>
>The mediator said her attorney and her were ok with the equal
>time but that she wanted to be designated as primary. I
>believe she wants to move my son many hours from here and
>thinks that if she is designated primary she will be able to
>do it. Her reason for moving is she can't afford to live here
>any more.
>
>Right now we have joint shared custody with equal time. It has
>been in effect for roughly 7 weeks now and is working
>wonderfully. It was awarded because we lived only a mile apart
>and all other things were in place. We were communicating ok
>concerning the kids and the judge commended us for that.
>
>Shortly after the shared custody was awarded and temporary
>child support was set, the communication stopped. Within one
>month of moving out of our home, she moved again. She only
>moved 10 miles but has changed school districts by doing so.
>
>All I have ever asked for was equal time with my 2 1/2 year
>old son and her son from her first marriage. Her son and I
>were very close but she has kept him from me all summer. He
>has said all along that he wanted to spend time with me. Her
>and her family claim that he hasn't wanted to see me. I find
>it hard to believe but that is irrelevent as I have no legal
>grounds to even talk to him.  
>
> I have documentation of lies and deception. Some of this
>documentation is in the form of a court transcript. Her
>attorney, on her behalf, told the court that as long as the
>older boy wanted to spend time with me he could. Shortly after
>the shared custody ruling she stopped letting him see me. He
>has told me that he wants to see me and spend time with me.
>
>My attorney and I feel that based on a lot of her recent
>behavior that I should go for custody. There is a lot more to
>her and her behavior that I haven't listed. I don't think she
>has the best interest of her kids at heart. I also don't think
>I have a chance of getting custody even though she is wrong.

I'm taking the unusual step of avoiding your questions. In my opinion, your attorney has made a huge error by permitting this relocation to go unchallenged. If the child is attending a new school at the time that you go back to court, you will LOSE, because the court will not want to upset the status quo.

Nothing else will matter. I don't know if school has already started, but if it has, frankly, I'd say you're screwed if you allow the case to go to a judge, and that you will be far better settling before trial in order to prevent her from moving anywhere else in the future.

I haven't seen your orders, but it seems to me that for the mother to move during the pendency of the action is contempt, and if it's not, then your attorney made another blunder by not making certain that a no relocation order was in place in the temporary orders.

If you can get into court now and either get a contempt order or get the judge to order temporary custody changed and the child placed in your care prior to school starting, then you may yet prevail in your action.

If you don't, you're gonna get beat, in my opinion.

There is one other possibility, i.e., you move to the child's school district, immediately.

All of this may seem unfair, but reality is that the judge is bound by law to treat the child's interests as the tie breaker, when the parents' interests don't weigh in favor of either side. Your facts suggest that it's all even right before the buzzer, so the court will say, "Hmmm, well, the child is attending a new school already, and it would be even more stressful to move the child again, so mom gets primary and the bulk of custody during the school year, because 10 miles is a long way for close cooperation."

That's my prediction and advice, based on your posted facts.

[midwayusa]

The child in question is not of school age yet. He is only 2 1/2. The older child is hers by her first marriage and yes he has started school already. We never married and I never adopted so from a legal standpoint I have no say over the older child.

The orders that are in effect are temporary and were awarded by a magistrate judge. I have shared custody of the 2 1/2 year old and we have been doing this now for approx. 7 weeks.

She enrolled the older boy in school and moved then told me in a letter several days after the fact. It is my understanding in our state that any move, even down the street, the other party has to be notified in writing by certified mail 30 days in advance.

As I understand it the above notification is a standard requirement in all custody cases. I didn't take it to have to be in the custody arrangement.

I don't want to move to the school district she is in. She is renting in low income housing and I am keeping the home we were purchasing. She has asked for X amount and I plan to agree so I can keep the house.

We also had a pretrial hearing in which she tried to say that shared custody wasn't working. The judge would not change the orders and forced us to do mediation. The move took place after the pretrial hearing.

1. My biggest question is: How will this move to a different school district affect the shared custody arrangement on the 2 1/2 year old?

2. If shared custody is left in effect how will we determine the school he will go to when that time arrives?

3. Should I ask for primary residential designation so I can specify?

4. Is the move considered a Material Change in Circumstance?

5. With us running on temporary orders what should have been done about the move?

[socrateaser]

>1. My biggest question is: How will this move to a different
>school district affect the shared custody arrangement on the 2
>1/2 year old?

It probably won't right now, but as the child approaches the age of kindergarten, whomever is named primary caretaker will be permitted to choose the school, and after that, your equal parenting time will be in jeopardy. Don't let this happen.

The judge wants you to mediate in the hopes that the court will not have to decide. If it does, you're gonna lose, because you permitted the move to take place unchallenged, meaining that you impliedly consented. You've permitted the child to move to a lower income area, and that is evidence suggesting that you think it's in the child's best interests, or at least that the child's interests are not harmed by the move.

You must challenge the move.

>
>2. If shared custody is left in effect how will we determine
>the school he will go to when that time arrives?

The person awarded primary will decide, so don't allow this situation to go unchalleged. You can't negotiate an exchange for example, giving her primary and you getting the tax exemptions and an agreement that the child will go to school in your school district, because the court will refuse to enforce the agreement later when the child actually attends school.

So, you need to establish, as a fact now, with the court, that your school district is better than hers, therefore you should be primary.

>3. Should I ask for primary residential designation so I can
>specify?

If you don't want your future parenting time eroded to weekends and summer vacation, then yes.

>
>4. Is the move considered a Material Change in Circumstance?

It would be if there were already permanent orders in place, but since your still operating on temp orders, the doctrine doesn't apply. The court is still operating solely on what is in the child's best interests, regardless of any change in circumstances.

>
>5. With us running on temporary orders what should have been
>done about the move?

The instant that you knew for certain that she was moving, you should have moved for a modification of the temporary orders to prevent her relocating the child, by making you primary custodian. She has changed the status quo, and you have given your implied consent to the change by doing nothing.

Big mistake. Really big.

[midwayusa]

Obviuosly I am concerned about losing the shared custody. Especially since it has been in effect for a while and has been working.

One thing that the lawyer says will have some bearing is the fact that there is 9 years difference in ages of the boys. Yes they are half brothers but by the time the younger one starts school the older one will be driving and will probably have less to do with him.

The older boy already complains about the younger one invading his space and getting into his stuff. This will only get worse as they get older.

I appreciate your honesty and I am afraid you are probably right.

I hear so much about the courts looking out for the best interest of the child.

1. What about the fact that the 12 year old boy went to the school in my district since he was 5 and in kindergarten?

Now at 12 and after making friends and participating in activities that carry over form year to year he basically has to start over. She is letting him see friends from his lod school on the weekends but how long will this last?

2. What about the fact that she didn't follow requirements concerning a move?

3. What about the fact that she said it was up to the 12 yr old if he continued the relationship we have, then actively keep him from me and tell him he can't see me?

4. What about the fact that she wrote a note to the older boy's scoutmaster saying I could participate in activities, then months later e-mailing asking that I not be allowed to participate?

The scoutmaster was concerned about all this and forwarded me a copy of the e-mail.

5. Can this e-mail be used in court and will it matter?


I appreciate your honest answers and know that I am fighting an uphill battle. I do have a pretty aggressive lawyer and so far he has accomplished everything he said he would. He is very confident that shared custody will stay in effect. He is confident that we have enough evidence to get even residential custody.

There is a lot more to this case than just what I have posted. I don't want to divulge too much.

[socrateaser]

>1. What about the fact that the 12 year old boy went to the
>school in my district since he was 5 and in kindergarten?

He's not your child. It's none of your business.

>2. What about the fact that she didn't follow requirements
>concerning a move?

You have permitted it by your inaction, so you have no argument against her following the requirements.

>
>3. What about the fact that she said it was up to the 12 yr
>old if he continued the relationship we have, then actively
>keep him from me and tell him he can't see me?

She's right, unless you file a petition to establish visitation with the older child.

>
>4. What about the fact that she wrote a note to the older
>boy's scoutmaster saying I could participate in activities,
>then months later e-mailing asking that I not be allowed to
>participate?

She's the parent, and you're a legal stranger, so she can do whatever she wants, unless you prove that the child will be harmed by her decisions, after filing a petition to establish visitation.

>
>5. Can this e-mail be used in court and will it matter?

Irrelevant.

[midwayusa]

I recieved the letter notifying me of the move on Aug 17. I notified my lawyer immediately that day.

1. Is it too late to file anything concerning the move?

2. If not what approach does the lawyer need to take?

I trust my lawyer and he has done wonders for my case but I am disappointed that he let this slip by.

[midwayusa]

I have been told that I cannot do anything concerning visitation of the older child. The courts cannot and will not award even visitation.

My attorney says that our only hope is that the judge will look at her behavior concerning what she said about the older child and rule on the younger child based on this behavior.

[socrateaser]

>I recieved the letter notifying me of the move on Aug 17. I
>notified my lawyer immediately that day.
>
>1. Is it too late to file anything concerning the move?

No, actually, that makes things better, because you could tell the court that you went to mediation in order to avoid having to adversely challenge her moving, but since she refuses to agree to you being primary custodian, that it is in the child's best interests that you be awarded primary custody.

I would try to get some objective information about the school district that you presently live in vs. the one that she presently lives in, and also information about the local crime rates, etc.

You want to show that her moving affirmatively acts against the child's best interests. If you do, then the court will have to award you primary custody.

I was really concerned until you told me the date when you received notice. I think you're probably ok, but you can't let it go. If you have good evidence about the superiority of your living environment, then you should ask the court for a temporary ruling, if only to let the court know that you are very concerned about the other parent's move and the effect that it will have on the status quo.

[midwayusa]

So you think we should get something filed now concerning the move?

Or should we wait for mediation and address it?

I'm not so much concerned about schools and quality of schools betweent the districts. I am more concerned about her pattern of moving back home everytime life knocks her down. She left the 12 year old's father when he was 2 as well. She packed up and moved 6 hours away to her home town. She did this while her husband was at work and he had no clue they were leaving till after the fact. Her husband should have fought it but chose to give up.

I believe she wants to move back there again because she asked the 12 year old at one time if he wanted to move there or to Oklahoma where grandma lives. At that time he told her neither and she stayed.

It also concerns me that she is willing to move at a whim wothout any thought. I am purchasing the home we were living in. I have maintained that home so that things are pretty close to what they were before she moved. My son has all his toys that my family and I purchased for him. I even purchased a toddler bed that is exactly like the one his mom has.

This house has been his home since birth and I'd like to keep it that way.

2. I'm sure it doesn't matter, but what kind of stability does it show for her to move twice within 2 months?