Custody Battle

[sacrdhazel]

What is the name of your state (only U.S. law)? NY

I am a 31 year old mother of twin 5 year olds. I have been seperated from my husband for about 4 years. During that time the children resided with me and there was no formal paperwork drawn up. In 2008 I was involved in a domestic violence relationship which resulted in me putting the man in jail. In 2009, my husband caught wind of this and dragged me to court for sole custody. At the time I was in no shape to care for the children so I did not fight and handed the children over with paperwork stipulating supervised visits and a very minimal visitation schedule. During the tie that happened (June 2009) and today.. I have made a complete change to my situation. I have been paying him child support bi-weekly by check with no formal order for over a year. I have worked steadily at my job for over a year. My husband had went against the order and started letting me see the girls 50% of each month since the end of last year. I had them practically the whole summer, paid $2500 for camp... paid for uniforms for school... split extra curriculiar activities with him... have taken them on vacations... and have just had an all around terrific relationship with my children. I am currently enrolled in nursing school, have a healthy loving relationship with a man who my children love.. have made an effort to successfully pay off all debts, and have basically made a complete come back from the sad place I was 16 months ago.

With that being said, in between all of this, my husband has maliciously used the girls as a leverage piece to get things from me. If he gets upset about something, he will block me from calling the children or he will refer back to the original paperwork and I will go days to weeks without seeing them. He borderline harasses me via text and phone whenever he feels like he needs to control a situation. This most recent incident, he wants me to sign divorce paperwork without a lawyer and I told him I will not and he has again not allowed me access to the children. It has been an ongoing roller coaster ride for the past 9 months. He has boxed me out of thier school.. making me look like a monster and the teachers wouldnt talk to me last year. The girls needed to bring in a note to say if I was picking them up. All in all.. I have been going above and beyond to please him so long as I can see the children. I am FAR from a bad mother, I was just in a bad spot at one time of my life and I admitted it in the best interest of the children. I feel at this point he is now just being a control freak to get what he wants and will use the children to get his way.

I hired a lawyer back in April and gave him a retainer. He has done NOTHING since then. I actually called him yesterday crying and begging him to finally do something because I can not live this way and the girls shouldnt either. The lawyer has informed me that because the divorce is pending in Supreme Court... Family Court wont see me... is this true? Please ... if anyone has any advice for me.. I can really use it.

Allison

 

[Ohiogal]

What is the name of your state (only U.S. law)? NY

I am a 31 year old mother of twin 5 year olds. I have been seperated from my husband for about 4 years. During that time the children resided with me and there was no formal paperwork drawn up. In 2008 I was involved in a domestic violence relationship which resulted in me putting the man in jail.

So you have been involved in several adulterous relationships.

In 2009, my husband caught wind of this and dragged me to court for sole custody. At the time I was in no shape to care for the children so I did not fight and handed the children over with paperwork stipulating supervised visits and a very minimal visitation schedule. During the tie that happened (June 2009) and today.. I have made a complete change to my situation. I have been paying him child support bi-weekly by check with no formal order for over a year.

And your changes do NOT matter. What matters are the changes in the life of the children.

I have worked steadily at my job for over a year. My husband had went against the order and started letting me see the girls 50% of each month since the end of last year. I had them practically the whole summer, paid $2500 for camp... paid for uniforms for school... split extra curriculiar activities with him... have taken them on vacations... and have just had an all around terrific relationship with my children. I am currently enrolled in nursing school, have a healthy loving relationship with a man who my children love.. have made an effort to successfully pay off all debts, and have basically made a complete come back from the sad place I was 16 months ago.

So you are continuing to commit adultery with a different man. You are still married.

With that being said, in between all of this, my husband has maliciously used the girls as a leverage piece to get things from me. If he gets upset about something, he will block me from calling the children or he will refer back to the original paperwork and I will go days to weeks without seeing them.

Then you need to go to court because he has a right to abide by the COURT ORDERS.

He borderline harasses me via text and phone whenever he feels like he needs to control a situation. This most recent incident, he wants me to sign divorce paperwork without a lawyer and I told him I will not and he has again not allowed me access to the children.

Okay. So often have you seen the children?

It has been an ongoing roller coaster ride for the past 9 months. He has boxed me out of thier school.. making me look like a monster and the teachers wouldnt talk to me last year.

How did he box you out of their school?

The girls needed to bring in a note to say if I was picking them up.

That is because YOU signed paperwork stating minimal SUPERVISED visitation.

All in all.. I have been going above and beyond to please him so long as I can see the children. I am FAR from a bad mother, I was just in a bad spot at one time of my life and I admitted it in the best interest of the children. I feel at this point he is now just being a control freak to get what he wants and will use the children to get his way.

Your opinion.

I hired a lawyer back in April and gave him a retainer. He has done NOTHING since then. I actually called him yesterday crying and begging him to finally do something because I can not live this way and the girls shouldnt either.

What do you want him to do?

The lawyer has informed me that because the divorce is pending in Supreme Court... Family Court wont see me... is this true? Please ... if anyone has any advice for me.. I can really use it.

Allison

You can try to put custody in with your divorce and request a hearing to modify custody. But you need to show a substantial change in circumstance in the life of the children. Your changes do not matter to change custody. What exactly is it you want?

 

[liandrajade]

In NY OG, She MIGHT be able to get family court to issue a temp visitation order pending the finalization of the divorce in supreme court.

You would have to file a petition to request temporary orders BUT I need to know if the current order in effect was it filed through family court or supreme court?

If it was done through family court, you will have to file for a modification requesting more time.

Here is the statute, Family Court Act, Article 6, Part 3, Section 652.

§ 652. Jurisdiction over applications to fix custody in matrimonial
actions on referral from supreme court. (a) When referred from the
supreme court to the family court, the family court has jurisdiction to
determine, with the same powers possessed by the supreme court,
applications to fix temporary or permanent custody and applications to
modify judgments and orders of custody or visitation in actions and
proceedings for marital separation, divorce, annulment of marriage and
dissolution of marriage. Applications to modify judgments and orders of
custody may be granted by the family court under this section only upon
the showing to the family court that there has been a subsequent change
of circumstances and that modification is required.
(b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or visitation
in an action for divorce, separation or annulment, that it may be
enforced or modified only in the supreme court, the family court may:
(i) determine an application to enforce the order or judgment awarding
custody or visitation, or (ii) determine an application to modify the
order or judgment awarding custody or visitation upon a showing that
there has been a subsequent change of circumstances and modification is
required.
(c) In any determination of an application pursuant to this section,
the family court shall have jurisdiction to determine such applications,
in accordance with subdivision one of section two hundred forty of the
domestic relations law, with the same powers possessed by the supreme
court, and the family court's disposition of any such application is an
order of the family court appealable only under article eleven of this
act.

The bolded gives the Family Court the right to and jurisdiction make a determination of the visitation/custody issues in a pending Divorce UNLESS otherwise specified. Correct me if I am misinterpreting it OG.

Just an FYI- NY Courts tend to go by a best interest standard when it comes to these things, your actions may cause you problems in court if the court THINKS it is not in the best interest of the children.

Every case is different and has way too many variables BUT from my own experience and other associates experience in court, it's not a walk in the park. Now while it seems there is a trend towards co parenting and they PREFER the parties to both have equal time with the children, keep in mind, you have had a very minimal order in effect for awhile. You are going to be asked what has changed so much.

You are going to have to show susbtantial evidence or create enough reasonable doubt that getting more time is in the interests of the children. I think you need to get a different attorney, but that is just my opinion.

 

[BL]

See # 11 on the petition .

http://www.nycourts.gov/forms/familycourt/pdfs/gf-40.pdf

There is a divorce petition pending ,and as such ,family court may decline to hear the petition.

 

[Ohiogal]

I defer to the two NY'ers who have posted.

 

[liandrajade]

See # 11 on the petition .

http://www.nycourts.gov/forms/familycourt/pdfs/gf-40.pdf

There is a divorce petition pending ,and as such ,family court may decline to hear the petition.

Agreed, it's just worth a shot to mention she might be able to do something while the divorce is pending so she can see her children.

However, I have to agree with some of OhioGal's original post, you have made some decisions that might bite you in the rear end. You are going to be questioned as to WHY you agreed to the order you did and so on.

Having boyfriends while you are technically still married does NOT look good.

I'm also curious how is it you go from being able to take care of the kids fine and then all of a sudden you cannot and send them off to dad? I can see maybe giving dad residential custody but why such a limited and small amount of visitation?

You could have still given dad residential custody and STILL could have had a decent amount of visitation time. I say this because when I had a restraining order on my ex, guess what?

It didn't include my daughter so he got to see his daughter as per his visitation order which was saturday from 10-6 and sunday 10-2.

I have to ask just on principle what else happened that YOU agreed to such a crazy order and what did dad think he had on you? I do not see how you went from all that time doing everything to such a small order for time with so many restrictions, I'm sorry it doesn't add up.

That is extremely important to your visitation regardless if you get family court to hear your petition for more time right now or not.

 

[sacrdhazel]

I appreciate your responses and time, thank you very much.

#1... I understand having boyfriends during marriage is frowned upon.. he TOO had a girlfriend for TWO years... where he would take the children and part time live at her house and then back at his own. So it is not just I who had "an extramarital affair".

#2... I appreciate your remarks in regard to how apparantly I have a high mountain to climb... but my question to you was... "what exactly defines" a significant change in situation? I named several different aspects that I have changed over. At the time of the petition... I already had insecurity issues and my husband took that as his advantage. I handed them over because:

A. I was scared.
B. I did not have a job or any financial means to support myself or them.
C. We were selling the marital house and I could not afford to live there.
D. Emotionally and mentally I was in a bad place.
E. After the domestic violence I was hospitalized in a psych unit.

I felt like no matter what I said in court.. the domestic violence and my current situation would have never held up. I had NO lawyer or representation and he did.. there were several factors. I didnt know about "residential custody" or any other alternative form.

And how do my changes not impact the life of the girls? I have a stable home, financial stability, emotionally and mentally healthy...? I have gone above and beyond to make sure they feel safe and loved and have a good life.

If NY goes by a "best interest" standard... in what NORMAL WORLD is it in the "best interest" of the children with the yo-yo game he is playing? I have been responsible, consistant, and true since day 1. I understand he has the right to stick to the paperwork... but if he goes against it for one month, and then decides hes just a miserable person the next day and goes back to it... what kind of consistancy is that for the children?

The current order was filed in family court.

Thank you for your feedback.

 

[BL]

I appreciate your responses and time, thank you very much.

#1... I understand having boyfriends during marriage is frowned upon.. he TOO had a girlfriend for TWO years... where he would take the children and part time live at her house and then back at his own. So it is not just I who had "an extramarital affair".

#2... I appreciate your remarks in regard to how apparantly I have a high mountain to climb... but my question to you was... "what exactly defines" a significant change in situation? I named several different aspects that I have changed over. At the time of the petition... I already had insecurity issues and my husband took that as his advantage. I handed them over because:

A. I was scared.
B. I did not have a job or any financial means to support myself or them.
C. We were selling the marital house and I could not afford to live there.
D. Emotionally and mentally I was in a bad place.
E. After the domestic violence I was hospitalized in a psych unit.

I felt like no matter what I said in court.. the domestic violence and my current situation would have never held up. I had NO lawyer or representation and he did.. there were several factors. I didnt know about "residential custody" or any other alternative form.

And how do my changes not impact the life of the girls? I have a stable home, financial stability, emotionally and mentally healthy...? I have gone above and beyond to make sure they feel safe and loved and have a good life.

If NY goes by a "best interest" standard... in what NORMAL WORLD is it in the "best interest" of the children with the yo-yo game he is playing? I have been responsible, consistant, and true since day 1. I understand he has the right to stick to the paperwork... but if he goes against it for one month, and then decides hes just a miserable person the next day and goes back to it... what kind of consistancy is that for the children?

The current order was filed in family court.

Thank you for your feedback.

Your changes in circumstances would be that you have been allowed frequent and long term unsupervised visitations with the children with out issues .

You have a better lifestyle and the ability and housing for status quo visitations to occur.

You could file a petition in family court ,but family court may refer it to Superior court for the divorce matter .

What does the lawyer you retained plan on doing for you with the retainer ?

 

[sacrdhazel]

BL,

Thanks.

I have had very uneventful, consistant visitations for over a year... with no issues what so ever. I am on time... I call every night.. I do EXACTLY what I need to do in order to show my dedication to the children.

I have a much better status quo as per the changes I have stated prior to this message. Financial, housing, all around security. I understand I am the underdog and because of the papers I signed I have alot to prove to the courts... but I am not a drug addict nor a child abuser. I need expert advice on what the court needs to see from me in order to move forward. I would do anything for my children.. I just need to be directed.

The lawyer called me back today but he consistantly rushes me off the phone. He has explained that family court wont see me because of the divorce pending in Supreme. He claims that he will be doing alot of work this weekend and he will call me Tuesday. All I know is that I feel very powerless and I just need to gain my power back.

 

[BL]

BL,

Thanks.

I have had very uneventful, consistant visitations for over a year... with no issues what so ever. I am on time... I call every night.. I do EXACTLY what I need to do in order to show my dedication to the children.

I have a much better status quo as per the changes I have stated prior to this message. Financial, housing, all around security. I understand I am the underdog and because of the papers I signed I have alot to prove to the courts... but I am not a drug addict nor a child abuser. I need expert advice on what the court needs to see from me in order to move forward. I would do anything for my children.. I just need to be directed.

The lawyer called me back today but he consistantly rushes me off the phone. He has explained that family court wont see me because of the divorce pending in Supreme. He claims that he will be doing alot of work this weekend and he will call me Tuesday. All I know is that I feel very powerless and I just need to gain my power back.

You need to wait and see what direction the lawyer wants to go.

You've already Pd. a retainer.

 

[liandrajade]

Do not take anything I say personally, merely see how the courts and the opposing counsel MAY toss things against you.

#1... I understand having boyfriends during marriage is frowned upon.. he TOO had a girlfriend for TWO years... where he would take the children and part time live at her house and then back at his own. So it is not just I who had "an extramarital affair".

So you are both wrong but they are going to make you look worse because you handed over custody.

E. After the domestic violence I was hospitalized in a psych unit.

THIS is potentially something that can cause you problems BUT how are your mental health issues now? Keep in mind, he can recant and say anything at this point. Granted he would be pretty stupid to lie on the record that you have not been with the kids unsupervised all this time.

And how do my changes not impact the life of the girls? I have a stable home, financial stability, emotionally and mentally healthy...? I have gone above and beyond to make sure they feel safe and loved and have a good life.

The issue is how to prove it in court. Remember all that is on paper is that very minimal court order, is there anyone who can testify on your behalf that you have been allowed with the children alone unsupervised? What can you show as proof that dad has not has any issues with you being alone with the children?

If NY goes by a "best interest" standard... in what NORMAL WORLD is it in the "best interest" of the children with the yo-yo game he is playing?

Never said it was fair or right at all. You have to do your best to try and show the courts enough evidence and proof that a change in circumstances has occurred to warrant changing your current visitation order.

I have been responsible, consistant, and true since day 1.

Technically, you have not. You gave up custody to your ex. Be prepared to have them toss that in your face constantly.I am not saying this to be mean or a jerk or anything like that. I am just telling you the hard cold reality of court. Opposing counsel ALWAYS will do their best to discredit you and to do everything for THEIR client.

I understand he has the right to stick to the paperwork... but if he goes against it for one month, and then decides hes just a miserable person the next day and goes back to it... what kind of consistancy is that for the children?

Exactly, and until the court changes that order, you are both legally bound to it. As wrong as he is ethically for playing the games he does, he is not legally wrong for following the current order as it stands.

The current order was filed in family court

Then you may be able to file for a modification in family court BUT like BL said{he knows more than me} it can go either way, either the family court will hear it or refer it back to the supreme court to be decided with the divorce case.

Have you kept a time line of everything for yourself? Since 2008 when the issues occurred, have you kept a clear concise record? If not, I would suggest doing so, also see who can stand up as a character reference for you that WILL testify for you in court. Also keep any and all documents showing how you have been supporting and taking care of your children.

This is again just my personal opinion, I am not a lawyer BUT I still do not understand why your attorney will not just file the modification for you in family court and see where it goes. The worst that can happen is they refer it back to Supreme court and you just have to deal with it the best you can. The best case, they hear it and you may gain more time with your children.

Me personally, if I were paying someone to do a job and I was not satisfied with it, I'd keep it moving. I am NOT advocating to disregard your attorney BUT keep an open mind to the situation.

Good Luck, let us know how it turns out.