Substantial change question

[dorothymantooth]

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

Even though I got roasted by you folks last time I'm going to try this again and hopefully I am abiding my your rules and you won't lambaste me.

To explain: I am step-mom of 5-year-old boy. Two years ago, before there was any order in place, mom tried to move child from small town to a very bad section of a nearby large city without telling dad where she was going. Dad found out when mom's sister called and told him that mom was moving. Dad granted temp custody, then Judge ruled joint custody with dad having physical residence. Judge told mom that he wouldn't even consider changing custody until 2 years went by. Fast forward 2 years to now.

Mom files for change to get physical residence. I wanted to give you her exact wording in the petition, but I don't have it with me. I am paraphrasing:

---My son comes to my house for visitation dirty, with bruises, scratches and burns. My son’s father goes out drinking when my son is there and also doesn’t spend any quality time with his son. My son cut his finger while in dad’s custody and his dad did not take him to the doctor. I had to take him to the doctor when I got him for visitation. My husband has been remodeling his home for two years and it is unsafe, dirty and dusty. My son has asthma and the dirt makes it worse. I have moved to a better neighborhood since our last Court date and my son’s father has allowed me more visitation than what was in the order. My son has said that he wants to live with me and does not want to return to dads when visitation is over.---

What she wrote was pretty short and I don't think I left anything out but it may not be worded exactly the same. Dad is freaking out because he's desperately afraid of losing his son. He doesn't have access to a computer or he'd be writing this himself.

Here are dad's facts as rebuttal:

1) NO CPS reports filed by mom, doctor or anyone against dad regarding any of the above
2) Son does not actually have asthma
(Dad disagrees with the other stuff, too, but that's not really factual, it's his opinion)

I know you talk a lot about the fact that moms and dads are allowed to be crappy parents as long as the child isn't abused/neglected and there's nothing the other parent can do. It seems that most of what she has said amounts to her accusing dad of being a crappy parent, not that any change has taken place to warrant moving residence of son.

Does this seem like a substantial change?

Please be nice, I'm not trying to be an idiot, I love that boy too and it would break my heart to see him go. THANK YOU.

 

[CJane]

Do they have JOINT custody with Dad being residential parent? OR is there SOLE custody for either legal or joint?

 

[dorothymantooth]

There is joint custody, with dad being the residential parent

 

[dorothymantooth]

There is joint custody, with dad having residential placement

 

[CJane]

There is joint custody, with dad having primary residence.

Then unless Mom is trying to change from Joint to SOLE custody, she doesn't NEED a substantial change in circumstances. She needs only to show that more time with HER/her being residential parent is in the child's best interests.

So, Dad's opinion aside, how much of what Mom has claimed is able to be proven?

Kiddo doesn't have asthma. Does he have ANY breathing/bronchial issues that are undiagnosed?

 

[dorothymantooth]

Son has no illnesses, undiagnosed or diagnosed. He's healthy. As far as the other stuff:

No, he doesn't go to moms house dirty, bruised, or anything else. He isn't harmed in any way in dad's home. The house is not unsafe, and although the house isn't always spotless, it's certainly not filthy or unsanitary. Messy, maybe.

Dad spends time with son after work and on weekends he stays at home with dad. Dad generally socializes on the 3 weekends a month son goes to moms.

The cut on his finger was a judgment call. Dad cleaned it, put triple antibiotic ointment on and put a band-aid on it, which is the same thing the doctor did.

Son says he wants to live with mom when he's in time-out for being naughty. Son told dad one day that he wanted to live with mom because she made baked beans more often than he did.

As an aside, son was successful in Pre-K and is doing well in Kindergarten. Teacher has stated she will supply a statement in dad's favor.

I don't that she can PROVE anything.

 

[gr8rn]

Are you sure son does not have asthma? Because if Mom produces medical records that state this, Dad will not look good having primary residence and not knowing that son has asthma. (child does not need to have daily meds in order to be diagnosed with asthma)

 

[dorothymantooth]

Dad has asthma and he's been worried it might develop in son. However, son had physical in September for school, no asthma. Dad and I take him to his doctor appts. He's never had any breathing issues at home, school, grandmas. He had to go to ER one night over a year ago for croup. The ER doc specifically said that it was croup, that it was NOT asthma. If he has had breathing issues with mom, she has not mentioned them, nor have we gotten a bill for services, since he is on my medical insurance. Could mom have had him seen without the bill being sent to me? The bill for the cut on his finger came to me. I doubt mom would have him seen and pay for it herself, she doesn't have much $$$, she refused to pay half the copay for the cut finger bill even though it was in the order that she pays half of medical care. Mom and her BF smoke in the house and car. Maybe he coughs a lot while he's there and she thinks it's asthma? According to his regular doc, he's healthy.

 

[BL]

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

Even though I got roasted by you folks last time I'm going to try this again and hopefully I am abiding my your rules and you won't lambaste me.

To explain: I am step-mom of 5-year-old boy. Two years ago, before there was any order in place, mom tried to move child from small town to a very bad section of a nearby large city without telling dad where she was going. Dad found out when mom's sister called and told him that mom was moving. Dad granted temp custody, then Judge ruled joint custody with dad having physical residence. Judge told mom that he wouldn't even consider changing custody until 2 years went by. Fast forward 2 years to now.

Mom files for change to get physical residence. I wanted to give you her exact wording in the petition, but I don't have it with me. I am paraphrasing:

---My son comes to my house for visitation dirty, with bruises, scratches and burns. My son’s father goes out drinking when my son is there and also doesn’t spend any quality time with his son. My son cut his finger while in dad’s custody and his dad did not take him to the doctor. I had to take him to the doctor when I got him for visitation. My husband has been remodeling his home for two years and it is unsafe, dirty and dusty. My son has asthma and the dirt makes it worse. I have moved to a better neighborhood since our last Court date and my son’s father has allowed me more visitation than what was in the order. My son has said that he wants to live with me and does not want to return to dads when visitation is over.---

What she wrote was pretty short and I don't think I left anything out but it may not be worded exactly the same. Dad is freaking out because he's desperately afraid of losing his son. He doesn't have access to a computer or he'd be writing this himself.

Here are dad's facts as rebuttal:

1) NO CPS reports filed by mom, doctor or anyone against dad regarding any of the above
2) Son does not actually have asthma
(Dad disagrees with the other stuff, too, but that's not really factual, it's his opinion)

I know you talk a lot about the fact that moms and dads are allowed to be crappy parents as long as the child isn't abused/neglected and there's nothing the other parent can do. It seems that most of what she has said amounts to her accusing dad of being a crappy parent, not that any change has taken place to warrant moving residence of son.

Does this seem like a substantial change?

Please be nice, I'm not trying to be an idiot, I love that boy too and it would break my heart to see him go. THANK YOU.

There is no telling what the court may do .

If what you have posted is true , I don't see a change in residency .

Will the court hold a hearing? Probably .

Will the court dismiss the petition or modify the order ?

No one here can tell.

Are child's statements admissible ? Yes , but at 5 yrs. old and from what you have explained , I don't see they will be taken into account .

Additionally , litigants and lawyers often go into court confident of their case ,and often get shot down.

 

[dorothymantooth]

Update and request for advice

Initial hearing was last Thursday. Law guardian appointed, Mom got application for public defender. Dad also got application but it is unlikely he will qualify and Dad and I (step-mom) can't afford another lawyer.

Although Dad told Judge he wanted to work things out with Mom, Mom stated she would not budge on the issue of changing primary residence of Son to her home. The law guardian is the same one that Son had during the first Court proceedings. At that time she recommended that Son stay with Dad.

What happens at the next Court date? Mom will likely get a public defender but Dad will likely be pro se. As far as Mom's accusations that were listed near the beginning of the thread, what specific things does Dad need to defend himself against her complaints? What witnesses/documents should Dad be gathering?

Thank you. I know you folks don't like to go through 3rd parties and I am a legal stranger, but Dad doesn't have access to a computer right now.

 

[BL]

As far as Mom's accusations that were listed near the beginning of the thread, what specific things does Dad need to defend himself against her complaints?

The opposing party would need to show proof of what is claimed and that it rises to a change of custody .

Dad just denies the allegations .

What witnesses/documents should Dad be gathering?

Dad can get copies of medical records ,etc.

 

[dorothymantooth]

Update and Question

Pre-trial conference is over, hearing set for June 1st. Dad's attorney said that he learned during the conference that: 1) the only witness mom has is herself and 2) Son (5 y.o.) told his law guardian that he wants to live with Mom.

Questions:

1) So basically the hearing will be Mom stating her allegations against Dad and stating why Son should live with her, and then Dad disagreeing with the allegations and stating why Son should stay with him? So looking at the allegations she has, it's going to be pretty hard for her to PROVE anything if she's the only witness, correct?

2) How harmful is it to Dad's case that Son told law guardian he wants to live with Mom? When Dad spoke with the law guardian previously she said she saw no reason why the Son's residence should change.

3) As far as witnesses for Dad, he's got "character" witnesses but how helpful is that really? It seems like this case is more about the fact the Mom doesn't have any proof of anything, rather than Dad having to defend himself.

I may be over-analyzing this a bit. I have a tendency to do that.

 

[Proserpina]

Pre-trial conference is over, hearing set for June 1st. Dad's attorney said that he learned during the conference that: 1) the only witness mom has is herself and 2) Son (5 y.o.) told his law guardian that he wants to live with Mom.

Questions:

1) So basically the hearing will be Mom stating her allegations against Dad and stating why Son should live with her, and then Dad disagreeing with the allegations and stating why Son should stay with him? So looking at the allegations she has, it's going to be pretty hard for her to PROVE anything if she's the only witness, correct?

Pretty much, yes.

2) How harmful is it to Dad's case that Son told law guardian he wants to live with Mom? When Dad spoke with the law guardian previously she said she saw no reason why the Son's residence should change.

A five year old's preference is rarely going to be considered - they're notorious for changing their minds about just about every single thing twenty times within a five-minute period and are too easy to coach.

3) As far as witnesses for Dad, he's got "character" witnesses but how helpful is that really? It seems like this case is more about the fact the Mom doesn't have any proof of anything, rather than Dad having to defend himself.

I may be over-analyzing this a bit. I have a tendency to do that.

Honestly, character witnesses aren't going to make much (if any) difference.

Mom has to prove her case. Dad does not have to disprove anything.

 

[MichaCA]

I know its a minor point, but specifically addressing the alleged asthma symptoms, I think dad should make sure to point out with mom child is living in a smoking environment.

If dad has a good attorney, that attorney will mention during the proceedings that many (or all) of moms' accusations against the father are false and seem based on her attempt to build a case for the child living with her.

Dads' strongest arguement is going to be the status quo of having the child primarily for the past two years...and point out strongly his side of exactly how he see's his child faring in his care.

Another possibility here is does dad believe mom IS capable of being a stable mother now? If so, maybe he should consider moving to shared (50/50) physical custody.

 

[BL]

The Law Guardian ( GAL ) should be addressing the issue .

The GAL should be interviewing important witnesses ( specifically smoking and asthma ) , if the GAL is made aware of it .

The child's statements can be made admissible .

In the parents filings anything about what the child states about being around smoke is certainly something the court will address .

If the GAL is made aware ,the GAL should also make an appropriate recommendation to the court about the issue.