Getting Custody - how hard is it?

[Montana751]

The mother has had custody of children since she left father 7 years ago. Father has always seen the children and paid child support (never late). The mother has always been a little whacko, but the kids can now understand the turmoil going on. She tells them things like she will kill herself if they aren't with her. She tells them to lie about who she is dating since it is someone (who supposedly threw her down the stairs, etc.) to everyone so they won't get mad at her. There is never any food in the house, they have cereal for dinner or go out. She takes them shopping, out to dinner, to the movies every week - the children do not have a stable family life until they come to their dads where they are taught family values, ethics, etc., She thinks its okay to let an 8 & 11 year old wear makeup & sexy clothes. Teaches them things like "take a man for whatever he's worth, etc'. She is extremely bitter and accepts NO RESPONSIBILITY for her actions, thinks its everyone else's fault.

The father has not been in a position, until now to take custody of the kids. She constantly complains he doesn't see them enough (every other weekend isn't enough - father lives 50 miles away, comes down for school events, soccer games, etc.). He told her that he would like to have custody of them for the summer and she told him over her dead body. She tells the children horrible things about their dad that aren't true and all kinds of things so that they will only "love" her.

I feel the best situation is to get them away from her, but then they think she is going to die. They won't even go to an overnight camp because "we can't Mommy might die". The kids are 8 & 11.

Because she can't manage her money, she's constantly asking for more support. The father says you want more, then take me to court. The father wants to change the custody, either to have them full time or at least for the summer.

What do you think his chances are for a court to order him full or partial custody? (He has paid his child support every week on time without fail.) Since the father does not have much money, it would really be hard for him to have to pay thousands of dollars for an attorney and then have the judge deny him custody.

Any advise will be greatly appreciated.

 

[dorenephilpot]

He would have to prove her unfit in order to get the court to grant a change in custody.

If you think he can do that, then it might be worthwhile. If you don't believe that you can prove her unfit, then it's going to be a giant waste of time and money.

 

[Montana751]

Compared to some other "parents", I wouldn't consider her unfit, whacko yes. (What do you need to do to prove "unfit"?) I really believe she is a manic depressive or something. One week she is up (very nice, etc) and the next she is down (very hostile, verbally abusive, to everyone, including the children.etc.) She can't understand why the 11 year old yells at her and talks back (that's how she talks to them, if its not a high pitch scream, then obviously the children can't under stand her).


However, the father would like to spend more time with the children. Do you think a court would at least grant him custody for summer break in addition to every other weekend?

I think the children should be with their father during the school year and let the mother have them for break. The father can provide a more stable environment.

Also, can you get the court to make her take a psychiatric test and possible order her to medication?

 

[jeanine]

This mother sounds unfit to me. Any mother who would threaten to kill herself and tell her children that is mentally unstable. The question is would the children admit this to a therapist, law guardian or judge. Right now it's the father's word against the mother.

What he could do is keep a journal and petition the court for custody based on the reasons that she threatens suicide, is with an abusive boyfriend, etc. Not exactly a positive living situation for children to be involved in. If he petitions the court for custody - he can do it pro se - the judge will likely appoint a law guardian for the children. He should also request a court-appointed therapist who will determine where it's best for the children to be.

Let me just say a word about suicide threats - take them seriously. A friend of mine's family member threatened suicide and then carried it out. The person didn't die but they are severly disfigured for life.

 

[Montana751]

I met her in person 6 years ago when she tried to commit suicide by od'ing on antidepressants. She called the kids father wanting more money, and told him what she did. I made him call her parents and we went down to her, I watch the kids while he dropped her off at the hospital. She had her stomach pumped and was sent home. While at the hospital I had to explain to the 6 year old at the time that Mommy wasn't feel so well and daddy to her to the doctors. The 3 year old was sleeping at the time.

I thought attempted suicide was a crime, but the hospital didn't do anything, just pumped her stomach and let her go. Most likely she came up with some lie to cover that she purposely od'ed. Don't think she knows how to tell the truth, because we've never heard that.

 

[smh33]

You do not have to prove a parent 'unfit' for custody changes to be granted. Change in circumstances, parental interference w/ other parent, visitation interference, poor enviroment,etc are all possible scenes of custody change. Read your state statutes, most list issues that would warrant a custody change.

 

[dorenephilpot]

Yes, unfitness can be shown via combinations of reasons, such as the partial laundry list provided by smh33 -- plus about 100 other ways.

In other words, Mother is unfit to continue to serve as custodial parent because _____ (fill in the blank with your various and sundry reasons here).

But all roads go back to unfitness, in some degree or another.

 

[smh33]

I understand your diffrentiation of 'unfit' and that being in law, some words, reasonings are used differently than how we (the unlegal) would use such...meaning ie"unfit" you use in the legal realm while some of us assume it =abuse,neglect,etc...the most severe child attitude. I hope you did feel I was negating your reply, only meant to say 'unfit' in court could be other things other than the most severe...abuse,neglect,etc... Sorry if came out wrong.

 

[Montana751]

Do we have to prove 'unfit' in order to get summer visitation? Currently the father has no custody at all , mother has full custody.(did not have representation when separation occurred and was told (by her) that joint custody meant he would have to take the kids 6 months out of the year and since she took off with everything, he could not provide for the children and signed the papers, and when he did have representation for divorce was told he did not have to change custody since he sees the kids - we are currently looking for a new lawyer). However, before spending thousands to get the custody changed, he wants to be sure it will be granted.

He sees the kids every other weekend, but would like to add:

Legal Joint Custody
Summer vacation (12 weeks the kids are out of school), and will allow mother to see them every other weekend during that time.

Will stay the same:
Every other Weekend
Alternating holidays


Do you think its possible to get custody changed to this? I personally can't see why a judge would not allow this, he is their father. What's your thought? Do you think he can get custody changed?

 

[dorenephilpot]

I understand what you're saying smh33. No offense taken in the slightest way.

The problem with unfitness is that it's a really "squishy" area of law. There isn't an exact recipe or definition for what constitutes unfitness.

Usually it's a combination of things, and unfortunately because there is no set list, people cannot put their hands around it and define it. So, it's frustrating for folks to go into court and prove it when no one can tell them what it actually means.

It even varies from judge to judge, too, which makes it even more difficult to define.

It's sort of like the definition of pornography, where a supreme court judge once said he couldn't define it but that he knew it when he saw it.

Thanks, your honor. That was REALLY helpful.

Have a good day, all.

 

[Montana751]

Will a Judge give NCP Summers with his kids?

Currently the father sees the kids every other weekend. He would like to have them for the summer and let the mother have them every other weekend and 1 week vacation if she wants.

Will a court grant this? I heard that a judge might only give the father a week or so additional. The mother is going to fight it, she complains he never sees the kids enough (4 times a month isn't enough), yet she then says "0ver her dead body" will he get the kids for the summer.

As I mentioned, the father doesn't have much money and does not want to committ to thousands in legal fees if he is just going to be awarded a week or so. She will let him do that, but she doesn't want them with us (basically, she doesn't want them around me (the step-mom) because the kids really like me, I cook for them, I don't yell at them, I treat them well and she is EXTREMELY resentful of that). I've offered to take them to doctor appt's, watch them when they are sick, etc. and she says NO, but then complains how she has to do it.

1. Will a judge award the father all 12 weeks of the kids summer vacation? If not, how many weeks?