Custody Modification - Terrified of losing child!!

[kik1999]

State is Ohio
Little background: CP has sole legal/physical custody of one 6 1/2 yr old child. NCP has eoWed. visitation (ends at 8pm, but CP allows child to spend night and be brought to school next day for convenience of NCP, as he lives 40 minutes away) and eow visitation (ends at 6pm Sunday, but CP allows child to spend night and be brought to school on Monday eow for convenience of NCP). Both parents get along very well, child extremely well adjusted, happy and thriving in school. NCP makes double what he made at time cs set, but CP not even thinking of an increase, to keep the peace.
CP claims child on taxes every year as stated in divorce decree, NCP gets enraged this year (not past years, but this one!). Has never mentioned wanting more time with child, but now that he is upset about not being able to claim her (she is having surgery this spring and I think he is freaking about the out of pocket expenses), threatens to take CP back to court to lower cs (as he is now remarried with another child), receive eoy tax exemption and a new parenting plan.

NCP now threatening for joint physical and legal custody. I could care less about cs or tax exemptions, would write it off if it meant my child would live with me forever, as the primary residence. I don't even care about joint legal, as I DO think he should have 50% say in decisions regarding her, he is her father! I completely trust his judgement and like I said, we have agreed on everything until now (we were married at one time and we STILL agree! ). However, I am terrified of losing the primary residence. I am not an unfit mother, he has praised me in front of everyone - including her teacher this year! - about how great of a job I've done. Gone as far to say that it is completely because of me that she is such a good kid. My question is this, I know that judges favor joint cusody. How likely is it that a judge would order switching primary residences every other week or every two weeks, when there are no substantial (or ANY for that matter) changes in circumstances that have taken place? I know that my opinion doesn't matter, but I'm afraid this will disrupt her wonderful life. I have a great kid who has adapted so well to having divorced parents because we get along. I might lose this due to a freaking tax issue!!

 

[kik1999]

Can anyone give advice?

 

[Halls]

I don't see what you are afraid of. Your ex has no grounds to take your child away from you and not to get 50/50 at this time. There has to be a big change of circumstances for custody to change and unless you have done something horrible I wouldn't worry about it.

You don't have to give up stuff just to keep custody. There really is not risk for you to lose custody so don't give up getting the taxes, etc... Talk to a lawyer and just fight all of his requests to the court. Chances are he will lose!

 

[acmb05]

I don't see what you are afraid of. Your ex has no grounds to take your child away from you and not to get 50/50 at this time. There has to be a big change of circumstances for custody to change and unless you have done something horrible I wouldn't worry about it.

You don't have to give up stuff just to keep custody. There really is not risk for you to lose custody so don't give up getting the taxes, etc... Talk to a lawyer and just fight all of his requests to the court. Chances are he will lose!

I agree he will probably lose, however if she does not care about the cs or taxes then why not just let him have the write off and keep the peace. Not only that but it would end up costing more going back to court than you would receive in the tax break.

 

[betterthanher]

State is Ohio
Little background: CP has sole legal/physical custody of one 6 1/2 yr old child. NCP has eoWed. visitation (ends at 8pm, but CP allows child to spend night and be brought to school next day for convenience of NCP, as he lives 40 minutes away) and eow visitation (ends at 6pm Sunday, but CP allows child to spend night and be brought to school on Monday eow for convenience of NCP). Both parents get along very well, child extremely well adjusted, happy and thriving in school. NCP makes double what he made at time cs set, but CP not even thinking of an increase, to keep the peace.
CP claims child on taxes every year as stated in divorce decree, NCP gets enraged this year (not past years, but this one!). Has never mentioned wanting more time with child, but now that he is upset about not being able to claim her (she is having surgery this spring and I think he is freaking about the out of pocket expenses), threatens to take CP back to court to lower cs (as he is now remarried with another child), receive eoy tax exemption and a new parenting plan.

NCP now threatening for joint physical and legal custody. I could care less about cs or tax exemptions, would write it off if it meant my child would live with me forever, as the primary residence. I don't even care about joint legal, as I DO think he should have 50% say in decisions regarding her, he is her father! I completely trust his judgement and like I said, we have agreed on everything until now (we were married at one time and we STILL agree! ). However, I am terrified of losing the primary residence. I am not an unfit mother, he has praised me in front of everyone - including her teacher this year! - about how great of a job I've done. Gone as far to say that it is completely because of me that she is such a good kid. My question is this, I know that judges favor joint cusody. How likely is it that a judge would order switching primary residences every other week or every two weeks, when there are no substantial (or ANY for that matter) changes in circumstances that have taken place? I know that my opinion doesn't matter, but I'm afraid this will disrupt her wonderful life. I have a great kid who has adapted so well to having divorced parents because we get along. I might lose this due to a freaking tax issue!!

Well, I would have to disagree with the other posters who obviously haven't completely read what you wrote. For them to say he would "lose" is clear that some on here don't know what they're talking about.

If he were to ask for joint legal, he would get it. If he would ask for more parenting time, as long as it doesn't indicate being disruptive to the child, he would probably get it. When joint legal and physical is involved, NEITHER parent is considered the primary residence (although one residence will have to be established for mail and school purposes).

The tax issue is always a big thing. If you don't care about the tax issue, then sign the appropriate IRS forms giving him permission to claim the credit. Same with joint legal custody...amend the order to indicate both parents have joint legal and who's supposed to consult who about what (see www.deltabravo.net for some great examples of what to add), have both parents sign it, file it with the court. Include additional parenting time, as well.

If both of you get along, there is no reason you can't come to an agreement out-of-court.

 

[acmb05]

Well, I would have to disagree with the other posters who obviously haven't completely read what you wrote. For them to say he would "lose" is clear that some on here don't know what they're talking about.

If he were to ask for joint legal, he would get it. If he would ask for more parenting time, as long as it doesn't indicate being disruptive to the child, he would probably get it. When joint legal and physical is involved, NEITHER parent is considered the primary residence (although one residence will have to be established for mail and school purposes).

The tax issue is always a big thing. If you don't care about the tax issue, then sign the appropriate IRS forms giving him permission to claim the credit. Same with joint legal custody...amend the order to indicate both parents have joint legal and who's supposed to consult who about what (see www.deltabravo.net for some great examples of what to add), have both parents sign it, file it with the court. Include additional parenting time, as well.

If both of you get along, there is no reason you can't come to an agreement out-of-court.

My comment was more for the joint physical. I just dont see a judge ordering this being as they live 40 miles apart, this is for school reasons. I cant see a judge saying he has to live with dad half the time and be ransported 80 miles a day back and forth from school. Maybe if mom and dad lived in the same school district it would be different. As far as joint legal I personally think he absolutely should have that.

 

[Halls]

I disagree, I don't think he will get joint Physical at all as courts rarely do that unless the parents live close together and have a good relationship. There is standard visitation that the courts go by and that is likely what he will get.

He might get joint legal, but who knows. My sister has sole legal and her son's father asked the court for joint and the court turned him down. No reason other than he didn't have a good reason to have joint legal.

As far as the taxes are concerned. If you don't want to fight him into court than give it to him, but if you don't want him to have that than don't give in and defend that right in court. Chances are you will as the CP typically gets the right to the tax breaks for children. It is standard here where I live unless there is reason to deviate from that. I'm pretty sure that is how it is in most places as well. So, do what you want, don't be pressured to give something away you don't want to!

 

[Zephyr]

I disagree, I don't think he will get joint Physical at all as courts rarely do that unless the parents live close together and have a good relationship. There is standard visitation that the courts go by and that is likely what he will get.

He might get joint legal, but who knows. My sister has sole legal and her son's father asked the court for joint and the court turned him down. No reason other than he didn't have a good reason to have joint legal.

As far as the taxes are concerned. If you don't want to fight him into court than give it to him, but if you don't want him to have that than don't give in and defend that right in court. Chances are you will as the CP typically gets the right to the tax breaks for children. It is standard here where I live unless there is reason to deviate from that. I'm pretty sure that is how it is in most places as well. So, do what you want, don't be pressured to give something away you don't want to!

were you in the court room for your sisters case? most states want joint legal custody. I think my state MUST do joint legal unless there is a very persuasive reason to order sole. just be careful about giving blamket advice based only on the one or two case you know about, k?

 

[CJane]

Sooo.... am I reading this correctly that mom and dad are already operating outside the court order? Dad has Wed overnights and EOW from Friday through Mon morning? If so, he has child roughly 10 nights/month, correct?

I would guess that if dad really pushed this, he'd get the joint legal (and not have to work very hard for it) and get the extra time he's practicing anyway inserted into the order.

Op doesn't mention how far from the school the parents live, only how far from each other.

If mom has no issues w/dad having joint legal, and no issues w/child support, and no issues w/sharing the tax deduction, I'd recommend mom write up a new parenting plan that gives dad the overnights she's already allowing, assigns the deduction every other year (don't forget the 8332 form) and present it to dad for approval. This doesn't seem all that hard.

 

[betterthanher]

I disagree, I don't think he will get joint Physical at all as courts rarely do that unless the parents live close together and have a good relationship. There is standard visitation that the courts go by and that is likely what he will get.

Again, this is proof that people are not READING what is written. I never said anything about him getting JOINT PHYSICAL custody. I mentioned increased parenting time. Whether it be extra during the week or extended time during breaks.

He might get joint legal, but who knows.

Well I'll bet money if he were to file for it, he would get it. Especially since both parents get along. The court would see no issue -- plus he has a constitutional right in this dept.

My sister has sole legal and her son's father asked the court for joint and the court turned him down. No reason other than he didn't have a good reason to have joint legal.

I am assuming you are talking about joint physical. If it was joint legal and the judge ruled this way, that would be appealable as soon as he walked out of the courtroom. The judge abused their discretion here and also violated the father's constitutionally-protected right.

As far as the taxes are concerned. If you don't want to fight him into court than give it to him, but if you don't want him to have that than don't give in and defend that right in court. Chances are you will as the CP typically gets the right to the tax breaks for children. It is standard here where I live unless there is reason to deviate from that. I'm pretty sure that is how it is in most places as well. So, do what you want, don't be pressured to give something away you don't want to!

Again, people without a clue need to stop posting. If this went to court, what would wind up happening is the court ruling that the parents alternate years.

What "happens in your area" is irrelevant. If both parents get along, there is no reason they can't work it out out of court.

 

[Halls]

Sorry betterthanher, i disagree. I do not think the court will alternate years for taxes. I think the CP is the one who will get to claim the child tax credit if it goes in front of a judge. Everyone I have ever talked to that went to court for this reason it was decided just like that. There can be a court with a judge sitting on it somewhere who will alternate, but I think the majority give it to the CP.

 

[kik1999]

I appreciate all of your responses, and am glad I "bumped" up the thread after all!! Like I mentioned before, I think that the NCP should have joint legal, no problem there. And I am going to write his overnights into a new parenting plan as suggested. I am more worried about the arrangement that the NCP wants, which is one (or two at a time) week at my house, one week at his, etc. No way can that be beneficial for a child who would be traveling 80 miles per day for 50% of her trips to school. I don't think that is in the best interest of ANY child!! How draining! It has nothing to do with him not having more time, etc. Remember, I believe he is entitled to as much time as I am. But that arrangement that he wants....terrifies me that a judge might actually agree!! Glad to see that most of you don't think that is a likely ruling. I know, can't see into the crystal ball...

I would love to settle out of court. Unfortunately, he is the one that brought up taking me to court, never mentioned trying to work it out with me. He did this in a fit (or temper tantrum as I like to call it - threw those all the time when we were married and he didn't get his way). There was no option from him to try to resolve it out of court.

Again, I appreciate your feedback, support and advice!! I can rest a little easier now!

 

[CJane]

Sorry betterthanher, i disagree. I do not think the court will alternate years for taxes. I think the CP is the one who will get to claim the child tax credit if it goes in front of a judge. Everyone I have ever talked to that went to court for this reason it was decided just like that. There can be a court with a judge sitting on it somewhere who will alternate, but I think the majority give it to the CP.

There's a difference between claiming the deduction and the child tax credit. And I don't care who you've talked to, it's almost always an EOY thing. In my case, I claim one kid every year, ex claims the other every year, and since I meet the income guidelines, I claim both for EIC.

 

[betterthanher]

Sorry betterthanher, i disagree. I do not think the court will alternate years for taxes. I think the CP is the one who will get to claim the child tax credit if it goes in front of a judge. Everyone I have ever talked to that went to court for this reason it was decided just like that. There can be a court with a judge sitting on it somewhere who will alternate, but I think the majority give it to the CP.

Well I would suggest to you that you stop using the "people you've talked to" as your basis for responses and start educating yourself on state statutes and case law. While you're at it, start learning what's "fair" because if parent's can't come to a conclusion (in cases like the tax issue), a court will rule on what's fair to all parties involved. And in this case, it'll be alternating years...and if they aren't happy with that, then that's too bad.

 

[Halls]

Actually I have talked to lawyers who have told me this as well and have looked up laws on it as well, not just talked to regular folks.

Also, Courts aren't about what is fair all the time. Just cause it may be fair for a court to issue a parent getting to file the tax credit on their child EOY does not mean a judge is going to rule that way.