Child custody - Does he have a case?

[BugHogan]

Minnesota

Posted this before on the child custody board. No responses, I think I droned on too long. I will TRY to make this one shorter!

Father is NCP with joint legal for daughters, ages 12 (13 in Sept.) and age 13 (14 in Aug.) He is also CP for son from the same marriage, now 18, but still living with him.
Visitation was liberal because of parties close proximity to each other, ex decided to move 2 hours away approximately 3 years later.

Relationship between him and ex is antagonistic at best, she allows visitation but does not consult with him on anything regarding the kids, stating that she has "sole custody" and the decisions are up to her.

13-year old has been having problems in school for a couple of years and is now failing several classes. It is unknown whether or not she will pass 8th grade. Ex lives with boyfriend who has been arrested for domestic violence against her in the past (with children present as onlookers) and has been on public assistance for almost 12 years. Next year her lifetime limit runs out and she has yet to attempt to secure a job, car, or high school diploma. Father pays child support and takes advantage of all visitation time, including 2 or 3 weekends a month, most holidays, most school breaks and the majority of the summer.

Father is greatly concerned about the welfare of his daughters. They both have expressed a desire to live with him for many years. Our questions are:

1) Does he have a case to modify custody?
2) Will the children's preferences be taken into account per their age?
3) Will their mutual son be allowed to testify on his father's behalf as to his capabilities as a custodial parent?

Thank you for any light you can shed on this.

 

[Ambr]

(1) yes. modification requires a change in circumstances.
.....(a) the live in has been convicted of domestic violence
..........- against the mother
..........- with the children present.
.....(b) the oldest is flunking out of school.
.....(c) the mother is about to lose the only support for the home (public assistance)
..........- she has no job
..........- she has no education
..........- she has no applicable job skills
..........- in basic, no way to support the children and no way for assistance from the state.

(2) the children are of age to have their opinions heard by the judge on where they would like to live. kid's can't really choose, just voice an opinion.

(3) yes. the oldest son can be used as a witness to the parenting ability of the father. in essence this is asking the son to pick sides. are you sure you want to do that to him?

 

[BugHogan]

Thanks Ambr. It's helpful to get a third party's perspective. My fiance seems to feel confident that he could prevail, however we want to make sure, because this is sure to start a war with her and those are never pleasant. Losing custody of the children would end her public assistance grant and since that is the only source of income, she is bound to fight to keep them. We believe she *might* let the oldest go to us without much problem, because they don't get along anyways. We've even thought about paying her beyond the child support to let us have them, but we really can't afford it. My fiance doesn't even care about getting child support from her for them, he just wants them to be in a better environment.

His son has offered to testify in court without being asked. He wants the girls to live with us as much as they want to live here and as much as we want them. He has been estranged from his mother for quite a while now (her choice). She wasn't there for him while he was growing up even though she had liberal visitation rights. At times, we would call her to ask her if she would like to visit with him and bend over backwards to accomodate her. When she would exercise her rights, we usually had to force him to go. They've never gotten along and at times while he was visiting, he would call us up, crying and asking us to come get him. He decided during the divorce that he wanted to live with his Dad (age 7) and the courts agreed. At the time they split custody of the kids because they were getting along very well. I got along with her too, it's been since she met her boyfriend and moved in with him that the problems started.

I think it will be hardest on the girls, because despite of her problems, she's still their mother and they love her. I'm sure they would be able to express their opinions to the judge fully, provided they didn't have to do it with any of us present. They have asked her if they could come live with us and she always says, "I don't want to talk about it right now" or completely ignores that they have asked. Last visit the girls were begging Dad to make it so that they could live with him. It's really heart-wrenching, divorce sucks!

 

[BugHogan]

One more question - how to get a copy of the domestic violence incident report

How would we go about doing that since the incident did not involve either one of us?

 

[Ambr]

you have a lawyer or going it alone?

you could subpoena the records. it shows a pattern of domestic violence in the home in front of the children and makes it fair game.

 

[Ambr]

don't know where you are from, but this dinkly little town where i am from has a column known as the "about town page". of course, little towns, not a lot to talk about. they have a page dedicated to the happenings around town. who came in to visit aunt what's her name and who attended what babyshower, etc. along with a police report column. who got stopped, the date, the time, what they were arrested for, the works.

we have several columns where my ex's new wife had been arrested on outstanding warrants for passign bad checks. one write up on when they came to her place of employment, placed her in handcuffs and took her away in the patrol car. all courteousy of a columnist called Aunt Cindy - a lovely little old lady with horn rimmed glasses.

 

[BugHogan]

Actually since they live in a tiny little town, it is entirely possible that something of that nature made the papers. There have also been other things that he has done to show he has a pretty violent temper, breaking doors and windows, throwing the phone across the room. These are things the girls have told us.

We would like to have a good lawyer when we go in, but with our incomes, that is probably not going to happen. He would almost rather go in pro se than get low-cost, disinterested representation.