I need help with custody and a separation agreement

[Fan_Blue]

What is the name of your state (only U.S. law)? Virginia (VA) and Florida (FL).

Some things to note: I have relapsing-remitting Multiple Sclerosis (MS). The dates listed are approximate. Virginia does not recognize "legal separation", only marriage and 2 types of divorce. This is a link to the Virginia State Bar describing legal definitions of marriage and divorce in Virginia: http://www.vsb.org/site/publications/divorce-in-virginia/
As far as I know, the separation agreement we signed is basicly a legaly binding contract between us, not a document changing our legal marrital status.

2001 - My wife and I had a child. I was diagnosed with MS (not debilitating at that time). We lived in VA.
2003 - My wife left me and moved to KY temporarily, then back to VA. My child was with her. I remained in VA. We lived in separate locations in VA.
2004 - My wife and I signed a separation agreement stating that she has full physical and legal custody and allowing me very strict visitation rights. I have never abused nor been accused of abusing my wife or child in any way. She said (in the presence of her lawyer) that if I did not sign it, she would take our child and she would make sure I never saw our child again.
2005 - My MS symptoms became debilitating. I moved to NC to stay with family. Because of the distance between us, I could rarely visit my child. Attempts to contact them by phone were usually unsuccessfull or were for very short periods of time.
2009 - I had recovered enough to be able to drive to see my child about every other weekend. I was approved for Social Security Disability then. I learned that my wife had become an alcoholic. My wife moved to FL to live with some of her family. I got her set up in a home there, paying her bills. I did that for a few months.
2010 - We mutualy agreed to live together (living in separate rooms) as soon as I could go to FL. I still lived in NC. I learned that she was still drinking heavily (about a half gallon of liquor a day) and had been living in our home with a physicaly abusive man. She was constantly passing out, leaving my child in dangerous situations. Her sister discovered how she was living and immediately admitted her to in-patient rehab. I sold everything I had to move to FL to care for my child. After rehab I moved myself,my wife and child into a home, again mutualy agreeing to live in separate rooms. My wife and I eventualy renewed our relationship and planned to re-marry. She continued to drink heavily. My wife suddenly moved with my child back to VA. We lived together in FL for a total of 6 months.
2011 - I moved into a 2 bedroom apartment close to where she was living (in a neighboring town in VA). My wife and I agreed again to live together in separate rooms. She and my child moved in my apartment. We soon reunited and began living together in a relationship.
2012 - My wife agreed to go through in-patient rehab again. She kept drinking. Constant drinking, smoking and uncontrolled blood pressure caused her to develop a brain aneurysm that burst recently. She almost died and will need long-term recovery and rehabilitation. She's now living with her family. She had already made plans and was packed to leave me again before the aneurysm burst. We have been living together in a relationship for about a year.

How can I regain custody of my child and stop this from happening again?

 

[TheGeekess]

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

My wife and I were married in Tennessee about 12 years ago. We had a child 11 years ago. After my child was born I was diagnosed with Multiple Sclerosis. It was not debilitating at that time. She left me and we legaly sepparated about 9 years ago in Virginia. When I met her and her attorney to sign the separation agreement, I learned that part of the agreement was that she would receive full physical and legal custody. I did not agree to that at first. It gave me "reasonable" visitation rights, but only when my wife decided I could see my child and only with her or my mother-in-law's supervision, unless she agreed to allow me take my child on a short trip to McDonald's or something. She said it was temporary and it was to ensure that I would not take our child and run away. She said (in the presence of her lawyer) that if I did not sign it, she would take our child and she would make sure I never saw the child again. I believed her, so I signed it. I stayed in Virginia for about a year until my MS symptoms became so severe I could no longer work. I had nowhere else to go but back to my hometown out of state to live with family. Because of the distance between us I could rarely visit my child, sometimes only once a year. When I tried to call, I was always told that no one was available or that no one knew where my wife and child was. I slowly recovered enough to work part-time and was then able to drive to see my child without depending on family to take me. I found out where my wife was living and attempted to contact her. When that failed, I made a surprise vist. I found my wife living with a man who she told my child to call "Daddy". They were very heavy drinkers. He did not agree with her keeping my child from me and forced her to let me see my child. I then drove to see my child about every other weekend. One day her boyfriends mother kicked my wife and child out of the house while I was there with my truck. We packed all her stuff up and I took her to her family in Virginia. I drove back to where my family was and started making plans to move back to Virginia so I could be near my child. I was approved for Social Security Disability then. My wife then decided to move to Florida. She has other family that lives there also. During this time my wife and I were talking to each other more and agreed to move in together (living in separate rooms) so that our child could have both parents at home. I got her set up in a home there, paying her bills, waiting until I could save enough money to make a trip to Florida to live there. I did that for a few months. I learned that she was still drinking heavily and had been living in the home with a physicaly abusive man. I immediately stopped paying her bills. She had become such a drunkard that she constantly passed out, leaving my child to wander around the neighborhood at night, crossing a busy 4 lane highway at night to visit freinds. Her sister discovered how she was living and the dangers she was subjecting my child to. Her sister then immediately admitted her to in-patient rehab and I sold everything I had to move to Florida to care for my child. After my wife's rehab, I found a home and moved her and my child in. After a month my wife and I renewed our relationship and planned to re-marry. We stayed there about 3 months until we found a better place closer to her family there. We stayed at the next place 3 months also (6 months total in Florida). Then she said she missed her family in Virginia so much that she had to move back and she was going to do it whether I wanted to or not. She left me again, going back to Virginia. I went back to NC, determined to move to VA and take back custody of my child. It took me a couple months to get enough money to move into a 2 bedroom apartment and then another month to get furniture for me and for a child's bedroom. My wife asked if she and my child could move in and I agreed because I had no transportation to visit my child. By then I had an attorney. He advised me to make an attempt to amicably settle any disagreements over custody if I wanted to regain custody without a lengthy court battle. My wife and I have been living together in a relationship for about a year. We went through in-patient rehab again for her alcoholism. She kept drinking. She hid it from me until she developed a brain aneurysm that burst recently. She almost died. I've now learned that she had been talking every day to the first drunk boyfriend and also the last one she had in Florida.
I know you're shaking your head right now, but I stayed through all this to get my child back. I'm pretty sure I have enough evidence and enough witnesses to prove that she is unfit to be raising a child, but I have no money and now is the time to act. Her family has alot of money and they beat me to the punch every time. They feel that I am unable to care for my child because I have MS. They don't even know what MS is, nor have they even read about it. That's life in the mountains of south-west VA. I can not use VA legal aid because my wife has used them before.
Tell me what to do.

Get rid of the emotion/drama and just give the facts. Put in some paragraphs/white spaces. Nobody is going to read that block of text.

 

[Fan_Blue]

reply to comment

These are the facts. I'm not trying add drama or anything, I'm just telling what has happened, hoping someone can tell me what legal grounds I have. I'm numb, honestly. I just want my child to have a stable and safe environment. Thank you for your advice. I will try to edit it and break it up into managable pieces.

 

[stealth2]

These are the facts. I'm not trying add drama or anything, I'm just telling what has happened, hoping someone can tell me what legal grounds I have. I'm numb, honestly. I just want my child to have a stable and safe environment. Thank you for your advice. I will try to edit it and break it up into managable pieces.

Oh no - no one is going to read that as is. And I would bet that you can cut a good half of it out. Really - if you want people to read it? Cut it down.

 

[ecmst12]

Are you physically capable of caring for your child? If so, file for custody, if your wife is not physically capable of caring for him. If she does not stop drinking, it sounds like she's not going to live much longer.

 

[Fan_Blue]

reply to ecmst12

I think I know what to do now. I need to file an emergency order to amend and review the original custody order. I think her family may be planning on moving to FL, taking her with them. The clerk of court here says that any custody order is still binding until a judge makes a decision to change it. I have plenty of evidence to prove that my child has been in the middle of her very dangerous lifestyle for many years. I just hope I can get all this done before she leaves (if that's what she decides to do).

 

[LdiJ]

I think I know what to do now. I need to file an emergency order to amend and review the original custody order. I think her family may be planning on moving to FL, taking her with them. The clerk of court here says that any custody order is still binding until a judge makes a decision to change it. I have plenty of evidence to prove that my child has been in the middle of her very dangerous lifestyle for many years. I just hope I can get all this done before she leaves (if that's what she decides to do).

I have some concerns. No one, no matter how much of an alcoholic they are can drink a half gallon of liquor daily and not die from alcohol poisoning. Its simply not possible. Therefore, there is some exaggeration in your story and its critical that there be no exaggeration if you take it to court. You must stick to facts that you can prove with hard evidence. You also state that your wife will need long term recovery and rehabilitation, but that she is currently living with her family. What is her actual status? Can she talk, walk, handle ordinary day to day things?, or is she bedridden and barely functioning?, or something in between? If she is functioning is she drinking and can you prove that?

I know people in the real world who have MS so I have some familiarity with your situation. What is your prognosis? When might your disease reach a debilitating level again? Judges have some concern about putting children in positions where they might end up being caretakers for their parent. I am assuming that your child is about 11 from your timeline. The people I know with MS are not receiving SSDI because they are still able to work a normal 40 hour a week job. If you are at the level where you have been approved for SSDI because you are unable to work, that going to factor in.

My biggest concern is that a judge might view neither of you as in a position to primarily raise your child, and therefore might look at the case based on who has the most family support. It sounds like mom is living in a situation where there are backup caretakers for your child which would be her reason for moving to FL with her family (if that is what is being planned). It does not appear that you are in the same type of situation...or at least you have not mentioned anything similar.