Preparing for final round - milestone per evaluator

[DecentDad]

Hi Soc,

I'll soon be filing an OSC to modify visitation, leaving joint/joint custody the same.

I apologize in advance for what will be lengthy, but I want to give you all you may need.

Background to refresh you...

In 2001, I was fighting false DV shortly after mom filed for sole and concurrently moved 400 miles away.  I went 4 months seeing child 8 hours per month.  First temporary orders changed that to approx 25/75, though mom had upper hand from get-go.

Court ordered 730 eval in 2003.

730 evaluator recommended (after a 7 month investigation) that parents shift to a 5-2-2-5 (50/50) schedule in summer of 2006.  The evaluator's report came out in 2004.

At urging of the judge, parties settled at time of trial (2004) essentially for all of evaluator's immediate recommendations, no move-away (mom attempted).  At that time, it bumped up to a 35/65 schedule (mom still has had majority).  Settlement didn't address any future modifications.

We left the custody ruling to the judge.  Mom wanted sole.  Judge ruled joint/joint.  Mom wanted primary caretaker.  Judge ruled joint/joint, period.

This was final judgment, btw.

Since then, we've had several hearings, mine mostly just trying to find a way to get mom to behave.  I technically lost a contempt motion (though judge said he wasn't impressed with mom's actions), I won imputing mom's income at $3750/month for downward CS modification, judge asked parties to settle on order clarification (mom settled for my request for relief), I lost school motion (judge said mom can pick school and mom can pay 100% of school), and judge ruled against another order clarification (several issues were on one hearing date).  My most recent action was May 2005.

In May 2005, judge ordered us to complete the court's "you're a bad parent" class.

In June 2005, mom lost motion for sole custody and lost motion to eliminate overnights in my home.  A few months prior, she lost motion to strip away my birthday weekend with child.  In June 2005, judge voiced his displeasure with mom and her attorney due to absolutely no merit.

Per your advice at the time, I drew up orders stating that judge reviewed evidence and found that there was no change of circumstance to warrant changing custody (i.e., protecting the evaluator's recommendation for the future, since nothing has changed).  They got entered.

Okay, since then... I've intentionally ignored all of mom's antics, other than documenting them.  Without me responding, her attempts to engage largely died down in the past six months.

Moving forward... here's my "best interest" case for 50/50 (5-2-2-5):

A) 6 year old daughter has private bedroom in my home, as she always has had.  Mom continues to live in what evaluator called a "very tiny" one-bedroom apartment, and they sleep together.

B) My wife has been in daughter's life for 4.5 years, noted as well-bonded by the evaluator.  We'll be having a child in a couple months.  Moving to 50/50 will help ensure that daughter has opportunity to grow and bond with her only sibling.  Daughter is excited to be the helper.

C) 730 evaluator spent seven months with us and reported that it is in child's best interest to go to a 5-2-2-5 schedule summer of 2006.  He found that mom was the only one with abnormal psychological issues (in paranoia, handing conflict, and blaming others for her own difficulties).

D) Mom still refuses to work.  State has codified its expectations that a parent will support his/her child to his/her capacity, and I can't do it alone.  Me having more time with child will give mother greater opportunity to work.

E) Per email history, Mom has refused my requests for any extra time with child while family members were visiting (all my family is out of state).  Mom villified all of my family in past deposition (and I even had to get ex parte orders in 2003 to leave the state with child to visit family during my vacation).  Having 50/50 ensures that child has high access to both sides of her family.

F) Per email history in fall 2005, Mom and I agreed on modifying the weekday schedule to better match child's afterschool needs.  When mom did the math and apparently realized it put child in my home an additional 6 hours per month, she then demanded I give up two overnights per month; stating that she'd only modify the schedule if it reduces child's overnights in my home.  We therefore stuck with the old schedule, though we had previously agreed the weekday changes would be better for child.

G) I have high job flexibility and can ensure I'm able to care for child on a 5-2-2-5 schedule.  Mom has admitted (under oath) previously that she cycles through many babysitters per year.

I) For all of mom's complaints about child's welfare in my home, she has never produced an expert, teacher, doctor, or any objective witness to say child does poorly with me.  In her 2005 declarations, she states that child is afraid to express her feelings, but mom is able to conclude what child really feels.  Seriously.

J) I have witness testimony out the wazoo as to child's comfort and happiness in my care.

K) I've never missed child support.  I've never balked at paying medical expenses.  With notice to mother (and her refusal to do make-up), I've missed three exchanges in two years, once due to business travel, once due to car trouble, and once due to my grandmother dying out of state and attending her funeral.

L) In deposition, mom acknowledged that I may have read more about parenting and child development, but I'll never have the instincts that she has.

M) In deposition, mom stated I'm unfit but the only example of being unfit (when prompted) she could identify is when I refused to answer her in front of child as to why I was 5 minutes late for an exchange during rush hour traffic.  When asked, she couldn't find a single positive trait about me.  She stated that I have no problems with drugs or alcohol.  She stated that I'm not abusive towards daughter.

N) Child has been with me up to two weeks at a time, for vacation time.

O) Maybe nitpicking.  Child has had 12 cavities so far.  The first half were due to late nursing (nursed until age 4), and most recently the dentist said poor brushing habits.  I have no cavities, and I can supervise better brushing if child is with me half the time.

P) And, intentionally on my part, mom cannot show any significant conflict between parents from June 2005 to now.  We've been parallel parenting pretty well, given previous disagreements.


1.  Am I correct in assuming this motion is only a "best interest" argument, given that it's a parenting plan adjustment, and not a custody change?

2.  If I lay out the above, do you believe it's a strong "best interest" position to follow evaluator's recommendation?

3.  Realistically, is burden on mother to defeat the evaluator's long-term recommendation?

4.  Do I need to simultaneously file a motion to unseal the evaluator's report, so the court can review it, or would the court do it upon it's own motion?

Thanks!  Nearing the homestretch, regardless of its outcome!

DD

[socrateaser]

>1.  Am I correct in assuming this motion is only a "best
>interest" argument, given that it's a parenting plan
>adjustment, and not a custody change?

Correct.

>
>2.  If I lay out the above, do you believe it's a strong "best
>interest" position to follow evaluator's recommendation?

Stay away from any financial issue. This is not about money. It's only about the child's interests.

>3.  Realistically, is burden on mother to defeat the
>evaluator's long-term recommendation?

No, you have to overcome the status quo.

>
>4.  Do I need to simultaneously file a motion to unseal the
>evaluator's report, so the court can review it, or would the
>court do it upon it's own motion?

You should move to unseal the report as part of your parenting mod.

Comment: I think you're probably wasting your time trying to change things, but I don't see any particular danger in trying, as long as you stay far away from any possible implication that you are doing this to annoy the mother or to improve your financial circumstances. You must talk only about how the child's interests will improve from the change, rather than how your circumstances may improve, or how the other parent's circumstances may deteriorate.

Furthermore, the long term eval is stale, despite its long term outlook, so if I were opposing you, I would ask for a new evaluation of the current situation, and I'll bet the judge would order it -- with all of the expense and time that this would require. So be careful what you wish for, because this could be a very costly exercise.

[DecentDad]

Okay.

So of what I outlined, you don't find anything particularly compelling for best interest?  It seems you're suggesting my chances look glum to try to implement exactly what the evaluator recommended as best interest.

Any of these strong?...

Mother's inflexibility with any extra time in my home, and mother's long-demonstrated actions to limit child with my side of the family?

Mother agreeing in writing that a different weekday schedule is best for child, but then refusing to implement unless we reduce my overall custodial time?

New sibling in picture (and daughter with either be somewhat of a visitor in sibling's life or have opportunity to become more bonded)?

Private bedroom and good (alone) sleeping habits becoming increasingly important for a six year old?

12 cavities during mother's majority timeshare?

The sum of these aren't enough to say, "Hey, perhaps we need to better balance this child's exposure to dad's home too"?

Thanks for your candor.

[socrateaser]

>Any of these strong?...
>
>Mother's inflexibility with any extra time in my home, and
>mother's long-demonstrated actions to limit child with my side
>of the family?

Don't emphasize the mother's failings. This is a non-starter and the judge will think you're being vindictive.

>Mother agreeing in writing that a different weekday schedule
>is best for child, but then refusing to implement unless we
>reduce my overall custodial time?

Same answer.

>
>New sibling in picture (and daughter with either be somewhat
>of a visitor in sibling's life or have opportunity to become
>more bonded)?

Possibly good if you emphasize your desire for them to have more time together.

>
>Private bedroom and good (alone) sleeping habits becoming
>increasingly important for a six year old?

Dangerous, because it could suggest that the solution is to increase child support so as to equalize the relative living conditions in the two households.

>12 cavities during mother's majority timeshare?

So she's responsible for 7.2 cavities, while you're responsible for the other 4.8? You can't show that she is the direct or substantial factor of causation. It's a loser.
>
>The sum of these aren't enough to say, "Hey, perhaps we need
>to better balance this child's exposure to dad's home too"?

Not to me. I think you're asking for trouble unless you come up with a smoking gun.

[DecentDad]

1.  If you're advising to steer clear of pointing out some of mom's shortcomings, how can I argue that child would be better off with more time in my home (i.e., where such shortcomings aren't a factor)?

2.  With regard to equalizing living conditions, court already found a year ago that mom can earn $3750/month (which when added to CS can pay for a nice apartment).  It's solely her failing that has such disparity between homes, a conscious choice (and failing to act in child's best interest by refusing to work even the 30 hours while child is in school).  Judge is really going to consider "Hey, okay, so I see that mom is clearly too lazy to work, maybe we need to have dad pay more"?

3.  For purpose of gaining any judicial empathy during discretionary ruling, is it at all revelant to very briefly review (in pleadings) what led to status quo?  Custody evaluator essentially found us equal in terms of bond and parenting ability.  But status quo was created five years ago when mom filed for sole, made false DV accusation (dismissed by DA), and moved 400 miles away for 4 months (restricting my access to child to 8 hours/month, when I previously had daily involvement) before first set of orders.

[socrateaser]

>If you're advising to steer clear of pointing out some of
>mom's shortcomings, how can I argue that child would be better
>off with more time in my home (i.e., where such shortcomings
>aren't a factor)?

Concentrate on the positive. The other parent's shortcomings should speak for themselves. Allow her to point out your shortcomings and if she does, then you can mention her own to impeach her credibility.

But, if you start ragging on her from the get go, the judge will roll his eyes and you'll quickly become just another hostile ex.

The only times you want to directly point out a problem in the other parent is when it's REALLY serious, like intentional abuse, criminal activity or gross negligence.

>And with regard to equalizing living conditions, court already
>found that mom can earn $3750/month (which when added to CS
>can pay for a nice apartment).  It's solely her failing that
>has disparity between homes, a conscious choice.  Judge is
>really going to consider "Hey, okay, so I see that mom is
>clearly too lazy to work, maybe we need to have dad pay
>more"?

If you had direct proof that mom was the cause of the cavities, I'd say that would be worth being in your case in chief. But, you don't. How do you demonstrate that only she is responsible when you have the child 40% of the time?

Stay away from issues you cannot prove and let the other parent bring up those which she can't prove, and then you rebut those.

The object is to make you appear interested in nothing but the child, and your opponent interested in nothing but you. If you succeed, you can win -- otherwise, the court will maintain the status quo.

And, I'm fairly certain that a new eval will be ordered if you get past the first hearing. In fact, you should be asking for one. That is, you want to mention that the previous eval contended that long term should be a 50/50 split, and now you want the court to order a new eval to confirm the old one's findings, so that the court is operating on current info.

If you don't play it like this, then you are leaving it open for your ex to claim that the old eval is no longer relevant, and that will make you appear to be disingenuous.

Because, as a matter of law, evidence must be current and proximate to the current litigation, and your old eval is not -- so, technically, it's objectionable as irrelevant.

[DecentDad]

(whoops)

Gotcha on the all-positive approach and let mom turn it negative.  I agree, and thanks for that adjustment.

I spent $15k on an apparently well-respected (and mutually stipulated) evaluator 2 short years ago who made recommendations for a long-term step-up plan.

I spent more than $80k on attorney fees over the years leading to that point (mostly aggressively defending against an histrionic and paranoid person's constant attempts to push me aside via false allegations, NONE of which were ever validated by any judge or the evaluator).

Irrelevant to the law, I just don't got the reserves for another big $$ round.  It's not in child's interest for parents to continue to blow massive resources on this process.

So, I feel like I'm continuing to beat my head against a money-sucking system, when everything was examined ad nauseum, a plan was specified per anticipated growth, and nothing has changed since then (i.e., the anticipated direction has occurred).

But I am hearing everything you're saying and can understand how this can turn that way.

1.  Is it reasonable to proactively outline that parental bonds remain just as strong and deep as what evaluator outlined when child was 4 (now 6), that circumstances haven't changed that much, that mother hasn't put child back in therapy (unlike during the evaluation itself), that no new people have entered the picture (save for a new sibling)?  And then that puts mother in position to either agree or disagree via her response?  (and if she agrees that not much has changed, but she just doesn't feel it's in child's best interest, we're then left with the best interest battle and the court can more easily rely on the original evaluator's conclusions).

2.  If #1 isn't good enough (as you've been saying), is it reasonable and/or wise to move for a fast-track eval via the court (i.e., at little or no cost to parents, using a courthouse social worker) to verify the above?  We went through all the psych tests and extensive interviews already in the 730... and I don't find it in child's best interest to put her through that again, especially now that she's older.

3.  If #1 isn't good enough, and #2 isn't possible/wise; would you agree that the original evaluator is the person most likely to say his original plan is still in child's best interest (else take a blow to his credibility)?

4.  Why would a custody evaluator make a 2 year plan, given that anyone involved in child custody should have the foresight to understand what you just laid out... that such a plan is going to be called invalid due to passage of 2 years?!  This is what I struggle with... why it'd be in there if it's going to called irrelevant.

5.  Finally, since court ruled "no change of circumstance" in June 2005 (mom's failed motions to change custody and change visitation), is it reasonable to move court to instruct/restrict any new evaluator to issues/events from June 2005 to present?

Thanks for your time on this.  I know I write lengthy posts, but only to really examine options and best approach.

[socrateaser]

>1.  Is it reasonable to proactively outline that parental
>bonds remain just as strong and deep as what evaluator
>outlined when child was 4 (now 6), that circumstances haven't
>changed that much, that mother hasn't put child back in
>therapy (unlike during the evaluation itself), that no new
>people have entered the picture (save for a new sibling)?  And
>then that puts mother in position to either agree or disagree
>via her response?  (and if she agrees that not much has
>changed, but she just doesn't feel it's in child's best
>interest, we're then left with the best interest battle and
>the court can more easily rely on the original evaluator's
>conclusions).

You can argue that nothing has changed, but if nothing has changed, then why are you seeking a mod?

>
>2.  If #1 isn't good enough (as you've been saying), is it
>reasonable and/or wise to move for a fast-track eval via the
>court (i.e., at little or no cost to parents, using a
>courthouse social worker) to verify the above?  We went
>through all the psych tests and extensive interviews already
>in the 730... and I don't find it in child's best interest to
>put her through that again, especially now that she's older.

So far, the only substantial change I see is the intro of a new sibling. I don't see how an extra 10% custody will change anything.

>
>3.  If #1 isn't good enough, and #2 isn't possible/wise; would
>you agree that the original evaluator is the person most
>likely to say his original plan is still in child's best
>interest (else take a blow to his credibility)?

Yes. And, you can call him as a witness to state that he believes his report was viable at the time it was created. But, the evaluator can't opine as to how it is viable now, unless he re-evaluates, so you're in a catch-22, because that's exactly what you want him to testify to.

>
>4.  Why would a custody evaluator make a 2 year plan, given
>that anyone involved in child custody should have the
>foresight to understand what you just laid out... that such a
>plan is going to be called invalid due to passage of 2 years?!
> This is what I struggle with... why it'd be in there if it's
>going to called irrelevant.

He made his report based on what he believed was a good plan. It may still be a good plan, but the evaluator can't comment as to whether it should be followed now, unless he first investigates to see how the plan has been working during the first year.

>
>5.  Finally, since court ruled "no change of circumstance" in
>June 2005 (mom's failed motions to change custody and change
>visitation), is it reasonable to move court to
>instruct/restrict any new evaluator to issues/events from June
>2005 to present?

Evidence prior to June 2005 should be inadmissible to revisit the current mod, unless it is relevant to prove something other than your assertion that the mod should occur, such as habit (routine and automatic behavior of a person which past evidence can show conforms to present).

[DecentDad]

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