50-50 for a 1 yr & 3 yr old...

[rosegdrose]

Hello All, I am going through a divorce/custody right now. I have an attorney and filed for divorce in FL in the beginning of October. Following FL laws, both parents have custody bc we are still married. My husband wants to get our 1 year old son and 3 year old daughter one FULL week and his house and then one FULL week at my house. I don't like this idea for several reason. First being, he is living with his mom and dad. His father smokes and both of our children have asthma and were hospitolized for RSV, (not related to papa's smoking) but it doesn't help their asthma for them to be around the smoke. Second, I have been the primary care provider and I as was stay-at-home mother since our son's birth. I think that the schedule he wants isn't good for such young children. And third, I think that he wants to get the kids more, so that when we go to court, he can tell the judge that he has the 50% of the time and doesn't need to pay me what the guidelines say (he made $67k last year and the guidelines say that he should be paying about $1600.00 a month). So, of course, he is having a cow about the amount. I had agreed on a temp amount bc I knew that his work was really slow and he also has his other child (10 year) to care for, he has sole custody of her and her bio-mom was declared indigent. I had my lawyer file a motion for an emergency hearing so I can get some form of a court order, but it was denied and referred to mediation. The only mediation appointment available was for the end of January and he said he has "training" that day. So now, we have to wait for the February calendar to open up. I am frustarted with all of this. Because we have no order and the way that he laws work, there is nothing I can do in regards to keeping the kids on a different schedule than the every other week thing. The schedule I want isnt too different. My husband has every other wed and sat off. So he has the kids on the weekend he has off and then the week that he has wed off, he picks them up on tuesday evening and bring them back thursday morning or takes them to their respective locations for school. I really don't like the schedule that he wants and I am afraid that if we have to go to court, the judge will rule in his favor bc its the schedule that has been in effect for the last 3 months given that there is nothing I can do.

Do you have any suggestions on what to do? I gave him a proposal to look over. He ansewred the petition with his counterpetition for divorce and the above schedule. I told him last night that he needs to give me a proposal back so we can try and duke something out without going to court. I won't have the money to keep a lawyer around if I have to go to court. I have never been through this stuff before, personally. I mean we dealt with things bc of my husbands ex-wife, but that was somewhat different.

Do you have any suggestions on what I should do? I don't like hanging in limbo with no paperwork between us. Thanks.

K

[socrateaser]

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[rosegdrose]

Hello, I am going through a divorce/custody right now. I have an attorney and filed for divorce in FL in the beginning of October. Following FL laws, both parents have custody bc we are still married. My husband wants to get our 1 year old son and 3 year old daughter one FULL week and his house and then one FULL week at my house.

I don't like this idea for several reason.

    First being, he is living with his mom and dad. His father smokes and both of our children have asthma and were hospitolized for RSV, (not related to papa's smoking) but it doesn't help their asthma for them to be around the smoke.
    Second, I have been the primary care provider and I as was stay-at-home mother since our son's birth. I think that the schedule he wants isn't good for such young children.
    And third, I think that he wants to get the kids more, so that when we go to court, he can tell the judge that he has the 50% of the time and doesn't need to pay me what the guidelines say (he made $67k last year and the guidelines say that he should be paying about $1600.00 a month).

So, of course, he is having a cow about the amount. I had agreed on a temp amount bc I knew that his work was really slow and he also has his other child (10 year) to care for, he has sole custody of her and her bio-mom was declared indigent.

I had my lawyer file a motion for an emergency hearing so I can get some form of a court order, but it was denied and referred to mediation. The only mediation appointment available was for the end of January and he said he has "training" that day. So now, we have to wait for the February calendar to open up.

I am frustarted with all of this. Because we have no order and the way that the laws work, there is nothing I can do in regards to keeping the kids on a different schedule than the every other week thing.

The schedule I want isnt too different. My husband has every other wed and sat off. So he has the kids on the weekend he has off and then the week that he has wed off, he picks them up on tuesday evening and bring them back thursday morning or takes them to their respective locations for school.

I really don't like the schedule that he wants and I am afraid that if we have to go to court, the judge will rule in his favor bc its the schedule that has been in effect for the last 3 months given that there is nothing I can do.

1)Do you have any suggestions on what to do?

I gave him a proposal to look over. He answered the petition with his counterpetition for divorce and the above schedule. I told him last night that he needs to give me a proposal back so we can try and duke something out without going to court.

I don't like hanging in limbo with no paperwork between us. Thanks.

K
Sorry for not reading the guidelines, hope this helps...

[socrateaser]

>1)Do you have any suggestions on what to do?

Had you not agreed to the temporary orders you would have had grounds for an emergency order which would have almost certainly have given you primarly custody and substantial support. But, by agreeing, you took away the court's power to grant you that sort of relief, because you eliminated the emergency.

So, unless you can show that the kids are in serious distress as the result of the existing agreement (as reported by DCFS or a therapist, or with some other objective evidence), then you will not be able to get the court to hear your case again until after mediation.

You could offer to split the cost of a private judge to arbitrate your case. This can completely fast track the entire process, because then the family court judge need only rubber stamp the arbitrator's ruling.

It's not cheap (probably $300-600 per hour), but if you can get your spouse to agree, it might be worth the cost.

You can also offer to fast track the mediation by opting for a private mediator (I'm assuming that you have a court appointed mediator at the moment, if not, then ignore this comment).

The difference between mediation and arbitration is that in mediation there's no requirement that you come to an agreement on anything, whereas in arbutration, what the judge decides will be binding on you, the same as if your case were heard in the family court.

[rosegdrose]

Perhaps, I miscommunicated my statement. There is NO written order right now. The only thing that I agreed to, verbally, with my husband, was for him to pay me XXX amount of dollars for child support. Maybe when I said "temp" agreed to, you thought that I agreed to the current parenting plan.

So, right now, the only thing we have is our marriage license, which, according to FL law, says that both parents have custody until further ordered by the court. There is no written order saying anything different inregards to parenting time or support.

I had my lawyer file for an emergency hearing to get a written order. It was denied and referred to mediation. In the order, it stated that the

1. father is taking the children for extended periods of time and refusing to bring them back.
2. The father is refusing to take the child to school. (Daughter is 3 and goes to a school, not daycare, but an actually program from 8:30am-11;30am).
3. The father is currently residing with his parents, whom which one of them smokes. Both the children have asthma.

So since, it was denied, and referred, now I have to wait until the February calendar opens for appointmentsfor mediation. I hope this explains the situation.

I have no intention of keeping our children from my husband. I have been the primary caregiver since our son was born, the stay-at-home mom. He is 1 years old.

When my husband and I sought counseling in the past, the counselor told me that he had a problem with alcohol and was an alcoholic, not to the point of endangering the family but noentheless a problem. He, also, was an everyday user of pot. He would smoke every evening when he got home from work.

I told my lawyer, that if he needed to use that,in asking for the emergency hearing, to do so , but he didn't. I am pretty sure that my husband has ceased all pot smoking and a HUGE majority of his drinking, if any, because he knows that I could use it against him.

Do you have any other suggestions on how to get a wirtten order before February? Thank you so much for you time.

K

[socrateaser]

OK, well these facts make a huge difference. Frankly, this is the first time I have ever heard of a judge refusing to grant a temporary custody order where parents are unable to cooperate pending divorce.

Legally, you can keep the kids from him (and he can keep them from you), because you both have joint legal and physical custody until the court rules otherwise.

I would go back to the court for a second emergency order for sole physical custody pending divorce, on grounds that the kids are being exposed to cigarette smoke in the husband's new residence, because of the grandparents, and on grounds that the  parties cannot amicably agree to a parenting schedule, and because mediation is too far off to make the current uncertainty in the child'ren's best interests.

If I couldn't get an emergency ruling, then I'd just ask for an expedited hearing.

If neither of you smoked before the divorce, then the presence of smoke creates a hazard which is the result of husband's decision as to where to reside, and which may cause irreparable harm to the kids.

As for the drugs and alcohol issues, if you allege them and husband is tested and comes up clean, you will be viewed as trying to frustrate the other parent's reasonable exercise of custody, which could cause the father to be awarded temporary sole custody.

If you were sure he would test positive, I would use that as a fact -- but as you're uncertain, I think just the cigarette smoke should be sufficient.

[rosegdrose]

I don't think that my lawyer will be supportive of filing another emergency hearing on my behalf.

I paid him $1500, for what I thought would be for a divorce/custody. However, as it turns outs, the $1500 he qouted was for a settlement agreement uncontested. Since my husband is wanting to contest things, he said he is going to need more money if we have to go to court after the mediation attempt.

So should I ask him to do another emergency attempt? Or should I file one myself and just tell him [lawyer] that is what I am going to do? (since I am potentially running out of money with the lawyer)

1. How should it be worded so that it is different than the last one?

3+ months is a long time for us to be arguing over parenting time, I would think that  the judge would have just awarded something til a court date could be achieved.

2. Should I mention in the emergency paper that mediation schedule is put off until February?

3. How do you ask for an expedited court date?

I don't know for positive if he would test (+) for drugs use. The only thing I would have with would be a letter from our counselor stating that he is/was a drug user and had a problem with alcohol. I am sure she would write something up if I needed her too. I wouldn't ask her, nor would she stretch the truth, she would just state the observations she diagnosised during sessions.

Thanks
K

[socrateaser]

>I don't think that my lawyer will be supportive of filing
>another emergency hearing on my behalf.
>
>I paid him $1500, for what I thought would be for a
>divorce/custody. However, as it turns outs, the $1500 he
>qouted was for a settlement agreement uncontested. Since my
>husband is wanting to contest things, he said he is going to
>need more money if we have to go to court after the mediation
>attempt.
>
>So should I ask him to do another emergency attempt? Or should
>I file one myself and just tell him [lawyer] that is what I am
>going to do? (since I am potentially running out of money with
>the lawyer)
>
>1. How should it be worded so that it is different than the
>last one?

LOL! I don't know how the last one was worded, so how can I tell you how to make it different. Also, unless you first discharge your attorney of record in the case, the court will not entertain a motion from you personally.

You could go in and ask for a domestic abuse restraining order, which would likely get you in front of a different judge and a different case number, and would not require you to discharge your attorney, because this would be a separate case with no attorney of record.

The trick here, however, is that you must allege something specifically required by FL law that permits the court to enter such an order, and which you can stand up in court and testify to truthfully. Obviously, you don't want to say that your ex beat you with a stick if it didn't happen. But, you may be able to merely allege fear of the other party and thereby obtain the restraining order.

If you decide to go this route, you should go to your courthouse and ask them about how to file, because this is the one instance where the court will have a person available to help you with the documents (it's mandated by federal law).

If you decide to go back to your attorney, then I suggest that you and he sit down and discuss why he wasn't willing to use the counselor's letter re drug and alcohol abuse. Seems to me that you have enough objective evidence to make a case for temporary sole custody.

If you can't come to an agreement about how to file, then maybe you have the wrong lawyer working for you. The kids seem to be in some harm's way and for the court to deny your motion seems a little weird to me.

>3+ months is a long time for us to be arguing over parenting
>time, I would think that  the judge would have just awarded
>something til a court date could be achieved.

I agree. Something is weird. Maybe your attorney should ask the judge to disqualify himself for bias.

>
>2. Should I mention in the emergency paper that mediation
>schedule is put off until February?

I would, yes.

>
>3. How do you ask for an expedited court date?

If you're going for an emergency motion, you will get a hearing before the judge on the same day you appear at the courthouse. You'll need to find out from the clerk when ex parte motions are heard.

There's a lot involved, and I don't want to spend the time to explain it all unless you have already determined that you're gonna fire your lawyer, because otherwise, he's gonna be doing this and you don't need to know the process.

[rosegdrose]

LOL, sorry about that, for some reason I thought you were able to read the previsous motion, LOL. Anyway, I will talk with my lawyer this week.

The previous ordered stated that I filed for divorce on 10-09-2006. That the father has taken the children for extended periods of time and refuses to bring them back. That the father resides in a smokers home and both children suffer from asthma. That the father is refusing to take the child to school.

I also asked for a pick-up order to be placed so that my husband didn't just keep the kids anyway, which would be a civil matter and I would just end up back in court.

That was denied and referred to mediation.

Should I have my counselor write a letter stating that he has had previous alcohol and drug problems? However, I am sure that he has cleaned up his act because he knows that it could be used against him, so I don't want to look like I am trying to sabatage his reputation as a parent.

Thanks!

K

[socrateaser]

>Should I have my counselor write a letter stating that he has
>had previous alcohol and drug problems? However, I am sure
>that he has cleaned up his act because he knows that it could
>be used against him, so I don't want to look like I am trying
>to sabatage his reputation as a parent.

I thought you already had a report describing your spouse's substance abuse problems. If not, you could ask for a report from the counselor, but she may balk without the other parties' consent for release, absent a court order.

Based on your prior motion, this almost looks like an abuse of discretion by the court. How long ago was your motion denied?