Child Custody after Mom coming out of rehab

[boshuda2004]

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

Here is my situation.

I am a 35 year-old father of a 4 year-old girl.

My wife, 31 year-old, has been an alcoholic and drug addict for as long as I have known her. We live in San Diego, CA.

In January of 2010, she was arrested at night by the police for driving under the influence. My daughter was in the car, on the front seat without car seat or seat belt. My wife had a Blood Alcohol Concentration (BAC) of 0.18, over twice the limit in California. She spent the night in jail and was charged with the following counts:
- Count 1 DUI (VC 23152a)
- Count 2 DUI (VC 23152b)
- Count 3 Child Endangerment (PC 273a)

She went to a rehab treatment facility for 90 days. The treatment consists of a detoxification period, followed by an intensive in-patient program that includes therapy, AA meetings, classes etc...

Currently my wife is still in treatment but she will be released this coming Saturday (4/17/2010). We have both agreed that we want to get a divorce.
My reason is that I do not want to continue to live with a person that is a possible thread to my daughter. And also I have been very unhappy in our marriage.
Her reason is that she wants to focus on her recovery and thinks it is better if I am not around.

While my wife was in treatment, I hired a DUI lawyer. The judgment has not taken place yet. However, he has negotiated a plea bargain with the City Attorney in exchange for a guilty plea to Count 1 -- DUI (VC 23152a), to include the special allegation that a child under 14 was inside the vehicle.
That means that Count 2 and the more serious Count 3 will be dismissed.

I talked to my wife in the past few days. She is telling me that she wants to take custody of our daughter when she is released from treatment.
She told me that I can keep my daughter every other weekend plus one day per week during the work week.
She argues that she is a better provider for our daughter and that she can spend more time with her since she doesn't have a long commute like I do.

She works full time and she has decided to stay in a hotel near her work for a period of at least 3 weeks, until she can make other arrangements. She is not coming back to our house. Her driving license is suspended for 1 month which is the reason why she wants to live close to her work.
She told me that her Mom will help her taking care of our daughter during the day.

She made all these decisions regarding our daughter unilaterally. She did not consult with me and now she is telling me that this is the way it is going to be. She tells me that she will stay sober (though there is no guarantee) and she thinks she is entitled to get custody of our daughter just because she has completed her treatment.

I immediately told her that I will not accept to see my daughter on an average of 2 days per week. She refuses to make a compromise.

Both of her arguments for her decision do not make sense:

1) She states that she is a better provider: the initial child endangerment charge completely proves the opposite.
I am a loving, caring and responsible father. During the time my wife was in treatment, I spent 6 weeks with my daughter alone (she was with the grandparents the rest of the time) and I did a terrific job. Even my wife acknowledges that. I took care of everything by myself. I made special arrangements with my work to spend as much time as possible with her.
She goes to daycare during the day but we really bonded during the time she was me at home.

2) She states that, based on our work schedules, it is better that our daughter to be with her because she has more availability than me.
This is just not true. I have a long commute to my work (1 hour in the morning, 1 1/2 hours in the evening) but both of us work 40 hours a week.
In addition, I work from home twice a week (I am a software engineer and my company lets me to telecommute). Also, I can make special arrangements with my company to work an hour less on any given day if I work an extra hour on another day of the week. I have a lot of flexibility in my work which my wife doesn't have. Finally, I have 3 weeks of paid-time off a year and I will have 4 weeks in just a few months. My wife only has 1 week of paid-time off.

Until my parents-in-law took my daughter, she was going to day care 5 times a week in a private daycare facility that is half a mile from our house.
She is also supposed to start preschool in June and the school is one mile away.
Now my wife wants to move to a hotel room with our daughter and have her mother watch our daughter during the day. This doesn't make any sense at all.

In the long term, she wants to be the primary provider for our daughter and have her most of the time (71% for her VS 29% for me).

She is a recovering alcoholic and drug addict. One requirement after her treatment is completed is that she attends 90 AA meetings in 90 days. After 3 weeks, her Mom will be gone. How is she going to attend these meetings and focus on her recovery if she has our daughter with her?
Also, after one month, she will only get a restricted driving license that will only allow her to drive to work and to her AA meetings. What if my daughter has an emergency and needs to go to the doctor?

I can not comprehend how my wife is making child custody decisions by herself, after the things that have happened in our lives.
Her mother is completely on her side because she is in adoration with our daughter.

However, I think I have a right to be part of the decision making regarding my daughter's future.

For me, the perfect outcome is the following: I am trying to be fair to everybody and I want the best for my daughter. I strongly believe that my daughter needs me as much as she needs her Mom. I want to have share custody equally. That means my wife keeps my daughter 50% of the time and I keep her 50% of the time.
I strongly believe that I can take care of our daughter as well or even better than my wife. I am responsible and I have never put the life of our daughter in danger, unlike my wife.

So my questions are:

1) What are my rights?
2) How can I solve this situation? Do I need to meet with a mediator, or hire an attorney?
3) If we were to solve these issues in a court of law, what are my chances of getting half of child custody (50-50)?
4) Is there any aggravating factor against me in this case? Are there any action items I can take to improve my chances?
5) We are not divorced yet. Does it even matter right now?

Let me provide a little bit more of information regarding our respective situation:

- My wife and I have the exact same income
- I have no immediate family in the US. My wife's family is in the Bay Area, 500 miles away
- In the past, we have both recognized each other's ability to take good care of our daughter. I have plenty of written documents to support this.
- I have a very steady job. I have been employed by the same company for 8 years and in my recent performance appraisal, I was rated top quartile among all employees in my department. My wife has been struggling with her work (mostly due to her alcohol problems). In the past, she has been unproductive and has been coming to work late on a regular basis.
- My wife has help available (her Mom). I can also arrange for the same. My sister has agreed to come to help if needed during the transition period.

Finally, my last question is:

What if my wife and her Mom take my daughter to a hotel this weekend and the following days and I do not agree? What do I need to do?

Thank you so much for any help /advice.



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

 

[Isis1]

i'm sorry. i didn't read the whole thing...it was a bit long,

file for divorce today! request full physical custody, supervised visitation for mom, as temp orders until further court orders.

mom has a child endangerment charge against her. take it seriously.

 

[xylene]

You need YOUR OWN lawyer immediately.

You need to get to court ASAP and file for formal custody arrangement.

You need to file divorce ASAP.

You need to talk to a professional therapist IMMEDIATELY so that you can recognize and stop your behavior as a co-dependent enabler. Are you in Al-Anon or similar self-help?

How mom will handle court, AA, treatment and other judicial punishments are not your issues. Do not solve them for her.

Your concerns are for yourself and daughter.

Mom's plan is insane, you need to stand up for your child's interest.

You should have custody. Mom can get visitation when she has a HOME (not a hotel room) and then under supervision until the court is resolved.

Stop playing 'fair' - you are in the right - you don't need to compromise with insanity and denial from an alcoholic who is still in-patient...

 

[boshuda2004]

Thanks for the answers.

I have gone to a 1-week family program at the rehab center where my wife is and I have learned a lot about co-dependency. Yes I am attending Al-Anon meetings one to two times a week and I have a sponsor.

My wife says she is fine now. I am sure she will get plenty of support from her therapists, counselors, showing that she has learned her lessons etc...

Yes, the Child Endangerment charge is very serious. However, as I mentionned, it will be dismissed because my wife has agreed to plead guilty on the first count. Does it make a difference? I mean, if a charge is dismissed, does it mean that it will not even appear in the files and the Child Custody judge will never even know about it?

Thanks!

 

[boshuda2004]

You need YOUR OWN lawyer immediately.

You need to get to court ASAP and file for formal custody arrangement.

You need to file divorce ASAP.

Why ASAP? What does time matter in this case? Please explain.

 

[Isis1]

Thanks for the answers.

I have gone to a 1-week family program at the rehab center where my wife is and I have learned a lot about co-dependency. Yes I am attending Al-Anon meetings one to two times a week and I have a sponsor.

My wife says she is fine now. I am sure she will get plenty of support from her therapists, counselors, showing that she has learned her lessons etc...

Yes, the Child Endangerment charge is very serious. However, as I mentionned, it will be dismissed because my wife has agreed to plead guilty on the first count. Does it make a difference? I mean, if a charge is dismissed, does it mean that it will not even appear in the files and the Child Custody judge will never even know about it?

Thanks!

the arrest record will show the child was in the car. i'd still take that to the judge NOW!

dude. this is serious. your child could have died. mom needs help. still. stop enabling her. protect your child. you are protecting your child by letting mom get her help. mom is on a long term plan to self growth if she utilizes her recovery. and it won't happen in a few years. this is a full on lifetime commitment.

 

[xylene]

Why ASAP? What does time matter in this case? Please explain.

You need to act - fast - to secure your rights. The longer you go with the situation not formalized the harder it is.

Plus - you need to act while mom is still in treatment and does not have custody of the child.

Go pick up the child now.

As to the charges being dropped... the charges being dropped does not mean it did not happen. You know what happened. Mom's criminal behavior an negligence put your daughter in lethal risk.

 

[SESmama]

Biggest question, WHO has the child right now? If it is NOT you then the in-laws have no rights and you need to get her back ASAP and file right then and there. This will protect all parties involved as the courts will have jurisdiction over custody until they order otherwise.

 

[boshuda2004]

You need to act - fast - to secure your rights. The longer you go with the situation not formalized the harder it is.

Plus - you need to act while mom is still in treatment and does not have custody of the child.

Go pick up the child now.

As to the charges being dropped... the charges being dropped does not mean it did not happen. You know what happened. Mom's criminal behavior an negligence put your daughter in lethal risk.

I understand. How do I act now? Who do I call?
I am sorry for being so naive but I have never dealt with anything like this before.

 

[boshuda2004]

Biggest question, WHO has the child right now? If it is NOT you then the in-laws have no rights and you need to get her back ASAP and file right then and there. This will protect all parties involved as the courts will have jurisdiction over custody until they order otherwise.

Right now, my daughter is with my wife's Mom and her stepfather. They are on a cruise in Mexico until Saturday (they had my permission).
I agreed that they took my daughter for a few weeks to give me some relief.
Now after having dealt with the DUI lawyer and many other things related to my wife being in treatment, I am fully available again.

I suppose the only people who have any rights over my daughter are myself and my wife. My wife is still in treatment but only for 3 more days.

I talked to my in-laws the morning they left for their cruise. I told them that I wil pick up my daughter at the Cruise Terminal at the Port of Los Angeles when they return. They told me it would not be necessary since they were planning on driving to San Diego (which was not what was planned intially).
Then I found out a few days later from my wife that the reason they are going to San Diego after their cruise (instead of returning home) is to assist my wife with taking care of my daughter while she works.

There has been a lot of decision made while I was not present and to me, this is unacceptable.

 

[FinnSW]

When I went to get a divorce I called an attorney who specialized in family law. You can check the phone book, ask friends or call the local attorney or bar assocation. Since those with legal expertise are seeing this as urgent - perhaps an attorney who has time to take your case today.

I just saw your other post. How about just showing up at the terminal when the boat docks, thank them for the trip for your daughter and put her in your car? An attorney can let you know what documents you should have in your pocket when they protest your presence while they have to give you your daughter back.

I.

 

[SESmama]

You need to find out when the boat docks and be there to pick up your child. In the meantime go and file for all of it. Her being in treatment for only 3 weeks does not a stable person prove.

 

[boshuda2004]

You need to find out when the boat docks and be there to pick up your child. In the meantime go and file for all of it. Her being in treatment for only 3 weeks does not a stable person prove.

Thanks for the advice. I will do what you suggest.

By the way, my wife was in treatment for 3 months, not 3 weeks.

The situation is very difficult. I suspect that my wife will also be waiting at the boat dock since she is released from her treatment center the same day.
She is going to want to take our daughter with her and I want to take her with me. She is going to have her Mom and step-dad on her side.
How do I handle the situation? Do I just need to bring some paperworks showing that it is my right? Or do I call the police, or a mediator?

 

[ava42805]

I worked as a nurse in drug and alcohol treatment centers for several years and have seen firsthand, all too many times, how some parents choose to punish the addicted parent, and vent and voice "their" personal anger, versus the anger and concern that they have for their children. I'm certainly not making that assumption here, but if I were you, I would try to be completley clear on where you are coming from when reacting to this situation. Your daughter loves her Mother and I would bet, misses her tremendously.


I absolutely agree that your daughter's safety needs to be your first concern. But, I have to ask. Did you bring your daughter to visit her Mother, while she spent 90 days in inpt treatment? Has she had any contact with her at all, during these past 3 months? If not, can you only begin to imagine how much she would like to see her Mommy.. and how much your DAUGHTER needs to be able to see her Mommy?


There are going to be so many dynamics changing within your immediate family. Mom hopefully getting better and attempting to regain to some self responsibility. Dad dealing with the anger he has held all this time and also, it's not always easy for the "non addicted" partner to adjust to their new role of not being the caretaker for his spouse and entire family, as mom tries to regain her foothold.


If your daughter has not seen her Mommy in 90 days, keeping her away from her longer, is going to devaste her. If you can arrange something where everybody involved would be safe, I would highly encourage allowing your daugher to see her Mother in a safe situation as soon as that is possible.

 

[boshuda2004]

I worked as a nurse in drug and alcohol treatment centers for several years and have seen firsthand, all too many times, how some parents choose to punish the addicted parent, and vent and voice "their" personal anger, versus the anger and concern that they have for their children. I'm certainly not making that assumption here, but if I were you, I would try to be completley clear on where you are coming from when reacting to this situation. Your daughter loves her Mother and I would bet, misses her tremendously.


I absolutely agree that your daughter's safety needs to be your first concern. But, I have to ask. Did you bring your daughter to visit her Mother, while she spent 90 days in inpt treatment? Has she had any contact with her at all, during these past 3 months? If not, can you only begin to imagine how much she would like to see her Mommy.. and how much your DAUGHTER needs to be able to see her Mommy?


There are going to be so many dynamics changing within your immediate family. Mom hopefully getting better and attempting to regain to some self responsibility. Dad dealing with the anger he has held all this time and also, it's not always easy for the "non addicted" partner to adjust to their new role of not being the caretaker for his spouse and entire family, as mom tries to regain her foothold.


If your daughter has not seen her Mommy in 90 days, keeping her away from her longer, is going to devaste her. If you can arrange something where everybody involved would be safe, I would highly encourage allowing your daugher to see her Mother in a safe situation as soon as that is possible.

I appreciate your honest answer.

Let me make things clear: I do not request to have child custody because I am angry at my wife. I ask this for the safety of my daughter and her well-being.
Again, I am more than willing to make compromise. I would agree on a situation where both myself and my wife can spend equal time with our daughter. I understand the need for my daughter to see her mother and vice-versa. I understand and I respect it. Like I said, a 50/50 child custody scenario would work perfectly for me and I truly believe that it would benefit my daughter as well as my wife who can then focus on her own recovery.

In the immediate future, I have some concerns about my daughter living in hotel room for the next 3 weeks. That doesn't mean I don't want my wife to see our daughter. Again, I am opened to compromise. For the initial 3 week period and until my wife find some better living arrangements, I think it is better for my daughter to stay in her house, sleep in her bed, play with her toys and have fun at daycare with her friends like she did before.
My wife could take her on the weekends for the first 3 weeks.

Now, I have never tried to take my daughter away from my wife.
She has been in treatment near Palm Springs, CA for 90 days. The first Sunday after my wife was arrested, I put my anger aside and went to visit her with my daughter. Then my daughter stayed with her grandparents in the Bay Area for the first month. During that time, the grandparents never visited my wife a single time. After one month, they drove down to Palm Springs to return my daughter to me. They visited my wife for just an hour while they could have stayed the whole afternoon. For the 6 weeks I had my daughter with me, I visited my wife with my daughter every Sunday afternoon (the only time when visits are permitted), except on one weekend where I was too tired to do the drive. I also attended the family program and I brought my daughter one day during the week, even though it was against the rules. I just wanted my wife to be happy and spent some quality time with her.
When my wife got a pass to leave the facility one weekend, I did a round-trip from San Diego to Palm Springs (260 miles round-trip) so that my wife could spend the entire weekend with our daughter.

Finally, last weekend, my in-laws drove to Palm Springs and they had my daughter with them. They came to visit my wife but I was not invited. When I tried to call them to ask if I could come as well, they turned off their phone and never replied.

So, to answer your questions, yes over the course of her 90-day treatment, my wife has had plenty of opportunity to be with our daughter, thanks ot me mostly. In fact, I did so much effort in this sense that my in-laws have told me that I was too co-dependent and that I should stop behaving like that.

The issues I mentioned in this thread have nothing to do with anger, revenge or anything like that. I admit that I felt anger and other negative feelings over the past 3 months, especially right after my wife was arrested. You need to understand that my daughter has a trauma after seeing her Mom driving drunk recklessly in her car, after seeing her Mom pulled by some tough police officers, put to the ground and handcuffed. She witnessed all of that at the age of 4.
Not to mention that, that same night, my wife hit me with her car and drove over my foot while I was trying to get my daughter out of the car. I had and still have a contusion on my foot but decided not to press charge against my wife, thinking that the DUI charge would be enough for her to understand the seriousness of her acts.