Custody of my 2 year old in question

[jamessmith]

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

I have legally seperated from my wife back in March, and living seperatly since than. We originally planned for 50/50 custody. She began drinking heavily and I was going to go for full custody since she put my job at risk by not coming home on the weekends to watch our son while I worked. Luckily my boss and his wife watched him on those times(documented). There were times she came home intoxicated with her boyfriend whle our son was there. I went to the point of getting a lawyer and almost serving her with an ex parte, but she said she would quit drinking if I didnt take her to court.

So I filed for the divorce that week, got legally seperated and she went and got into a car wreck(totaled) a week later. She didnt say she she got a dui, but I suspected it. The police report wasnt availble becuase her friends fled the scene and it was being investigated. I held off on the final agreement depending if our family car she wrecked was paid off by insurance. She was convicted of a DUI and lost her license. She got a lawyer and didnt have to do jail time.

I have been really understanding with her and have been driving our son to her. When she still had a job, it was basically 70/30 becuase she could not drop him off at daycare. I did all the driving so she can see our son. She has not made any effort to come get him. She hasnt even been to my place since we moved.

Now she wants me to finish the paperwork, putting 50/50 in the agreement. Even though I would have him more. Her reaction to me putting 70/30 was "I would have to pay child support" even though I said I wouldnt ask for it.

What are the chances if this goes to court? I am going to serve her with 70/30. I think she would be stupid to take it to court considering her history but she might. This last DUI which almost killed her and 4 passengers is her second in 6 years. I have been the primary caregiver since the seperation. Currently she is on collecting employement without a job. I take him to all of his doctors appointments. She has not been to one in probably 2 years.

 

[Proserpina]

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

I have legally seperated from my wife back in March, and living seperatly since than. We originally planned for 50/50 custody. She began drinking heavily and I was going to go for full custody since she put my job at risk by not coming home on the weekends to watch our son while I worked. Luckily my boss and his wife watched him on those times(documented).

Was the child endangered? You mention another DUI within the last 6 years - had she been sober since that point?

There were times she came home intoxicated with her boyfriend whle our son was there. I went to the point of getting a lawyer and almost serving her with an ex parte, but she said she would quit drinking if I didnt take her to court.

Being drunk isn't illegal - again, was kiddo endangered?

 

[CJane]

How old is the child?

Sorry, I see it's in the title.

You say she hasn't been to a single appt in "probably 2 years"... are you saying she's NEVER attended a Dr's appt?

And how many have there been? My son is FOUR and has only had one Dr appt (for illness) in his LIFE.

 

[jamessmith]

Was the child endangered? You mention another DUI within the last 6 years - had she been sober since that point?

Not completey, but she had it under control.



Being drunk isn't illegal - again, was kiddo endangered?

One of the times I put in the paperwork when I was doing the ex parte she drove with our son in the car after drinking. I was able to smell it pretty strongly.

 

[CJane]

One of the times I put in the paperwork when I was doing the ex parte she drove with our son in the car after drinking. I was able to smell it pretty strongly.

But can you PROVE it?

And can you PROVE that she was over the legal limit? Because it's not illegal for an adult to drink - even when a child is in their possession.

 

[jamessmith]

How old is the child?

Sorry, I see it's in the title.

You say she hasn't been to a single appt in "probably 2 years"... are you saying she's NEVER attended a Dr's appt?

And how many have there been? My son is FOUR and has only had one Dr appt (for illness) in his LIFE.

Our son was sick alot when he was a newborn with ear infections. The last one she went to was when he was about 8 months, he is 28 months now. I took him to all of his vaccinations except the first, she was with me.

 

[Proserpina]

One of the times I put in the paperwork when I was doing the ex parte she drove with our son in the car after drinking. I was able to smell it pretty strongly.

But you cannot prove this?

 

[jamessmith]

But you cannot prove this?

No. I am not doing the ex parte anymore though. I am just going to serve her with 70/30 and go from there.

 

[CJane]

Our son was sick alot when he was a newborn with ear infections. The last one she went to was when he was about 8 months, he is 28 months now. I took him to all of his vaccinations except the first, she was with me.

I see.

Still... doesn't mean a whole lot custody-wise.

Have you done mediation yet? You'll be ordered to.

And any attempts to prevent Mom from having the child w/her will NOT look good for you. You MUST facilitate a relationship. What is your work schedule? Who babysits/provides child care?

 

[Proserpina]

No. I am not doing the ex parte anymore though. I am just going to serve her with 70/30 and go from there.

Frankly I think you've got a more than reasonable chance at 50/50 (which often does not mean a 50/50 timeshare - bear this in mind) but most courts are very reluctant to do a 70/30 without having a darn good reason for doing so.

Because you cannot prove kiddo was ever endangered while she was drinking (and had she been sober and started again, or what?) it's likely that you will not be able to use this against her to any useful degree.

Also you were still together until this year - the matter of Mom not taking kiddo to appointments before that unlikely to be a factor either since you effectively condoned it during that time.

 

[jamessmith]

I see.

Still... doesn't mean a whole lot custody-wise.

Have you done mediation yet? You'll be ordered to.

And any attempts to prevent Mom from having the child w/her will NOT look good for you. You MUST facilitate a relationship. What is your work schedule? Who babysits/provides child care?

No mediation yet. I am not really preventing her from seeing our son. I take him to and from her place. When she was working, she was ok with the 70/30. She just doesn't want it on paper because I can file for support. I take him to a daycare near my house and I pay all of it. Sometimes she will watch him one or 2 days since she is out of work if I drop him off but its not consistent.

 

[CJane]

No mediation yet. I am not really preventing her from seeing our son. I take him to and from her place. When she was working, she was ok with the 70/30. She just doesn't want it on paper because I can file for support. I take him to a daycare near my house and I pay all of it. Sometimes she will watch him one or 2 days since she is out of work if I drop him off but its not consistent.

And what is your work schedule?

What was mom's work schedule when she was employed?

How far away did you move from the marital home?

Where is Mom living? How far is THAT from the marital home?

Did mom drink when you were together? Obviously she drank at least occasionally 6 years ago. How long have you been married?

 

[jamessmith]

And what is your work schedule?

What was mom's work schedule when she was employed?

How far away did you move from the marital home?

Where is Mom living? How far is THAT from the marital home?

Did mom drink when you were together? Obviously she drank at least occasionally 6 years ago. How long have you been married?

She worked 7-4:30. I worked 7-6pm.

I moved less than 1 mile away. She moved about 13 miles away(she moved first, leaving me with rent to pay under lease).

She drank alot before we met. She stopped for the most part while we were married, but started again when we agreed to slpit up.

 

[jamessmith]

Frankly I think you've got a more than reasonable chance at 50/50 (which often does not mean a 50/50 timeshare - bear this in mind) but most courts are very reluctant to do a 70/30 without having a darn good reason for doing so.

Because you cannot prove kiddo was ever endangered while she was drinking (and had she been sober and started again, or what?) it's likely that you will not be able to use this against her to any useful degree.

Also you were still together until this year - the matter of Mom not taking kiddo to appointments before that unlikely to be a factor either since you effectively condoned it during that time.

I was planning on putting 50/50 legal, and 70/30 physical. When she does get her act together, I am willing to work with her on custody. I have been helping her through all of this even with all the stress she put me through. I have even been taking her to some of her classes.

 

[Proserpina]

I was planning on putting 50/50 legal, and 70/30 physical. When she does get her act together, I am willing to work with her on custody. I have been helping her through all of this even with all the stress she put me through. I have even been taking her to some of her classes.

How are you defining "getting her act together"?