What are my odds?

[Query1234]

What are his odds for primary physical custody?

Live in CA. I am a stepmom to two kids. The current situation is this. The older one was just accepted into a school where there are smaller classes, more attention and support. The child has been having problems since kindergarten in teh public school system and we've been trying to get her into a better environment for a few years now. The younger one is thriving at another private school. Bio-mom helps pay for 50% of younger one's tuition but says she can't contribute to older child's tuition at all. We have no problem with her not contributing (although it'd be a big financial hardship on us) as we are willing to do whatever and make whatever sacrifices as we feel the child's education is much more important than our finances at this moment. Bio-mom claims she would be able to contribute if she was allowed to move away out of the districts that both parties are restricted to by the court. My husband got that order in place years ago so that she wouldn't try to fly the coop with both kids. They currently have joint legal and physical custody with visitation to each house every other day and every other weekend.

Bio-mom has never cared enough about the kids' education. My husband got them into preschools and registered them for public schools. I was the one who helped get them into these private schools. The older one needs educational support as we suspect she has a learning disability (and emotional concerns - due to divorce and matters related to divorce) which she wasn't getting at her public school. Bio-mom is not consistent with homework nor anything that has to do with school. She keeps them out of school on a whim. Picks them up early whenever she feels like it. If one's sick, she'll pick both of them up as it's convenient for her and she doesn't need to come back to pick the other one up. I am afraid that moving out of the restricted districts will cause the kids undue stress and will be a detriment to their school work as they will hardly have the time to complete homework and eat dinner if they have such a long commute every other day. Bio-mom says she wants to keep visitation as it is right now with no changes other than the fact that she'd be moving further away. (It's hard to trust her as she's double-crossed us so many times in the past.)

What are the odds of my husband getting primary physical custody of his kids during the school year if their bio-mom moves out of the districts that the court has restricted us? I have kept a journal of the times she's neglected to take them to school and other matters related to school. Will that suffice or do we need more than that?

I am looking out for the best interest of the kids. Bio-mom has in the past, (and even now on occasion) seen the kids less than her court given time. She'd ask my husband to take the kids on her days/weekends so that she could go out or whatever. We take them gladly and willingly. We just want some consistency in their school life as we feel that a move might be devastating to the older child's education. Is this remotely possible? or will the court give her permission to leave anyway as she claims that she can't afford to live where she is now? I'd appreciate any advice on this matter.

 

[ans]

Unfortunately you are asking the impossible. Nobody could even begin to know what a judge will say. The one thing I do not understand in many of these cases is that when anyone puts in a modification or a change of custody, dont you have to go through a child evaluation or is this just a Oregon thing????? We just went through a lengthly one which happened when mediation didnt work. In our case it was great. It is a court counslor ( masters in physchology) who looks at both homes and makes a recomendation to the courts. In Oregon or atleast our county the judge then basically goes with what the counselor says. It is hard to say what and how it goes but education was a big factor for us along with other things. For us we were able to resolve prior to going before the judge. Sorry couldn't be of more help.

 

[stepmomma]

first, do not refer to your log of b/m's activites as a journal or diary, as such it can be supoena'd (sp?). call it a record book or something similar, as such it can be considered part of attorney-client communications.
it sounds to me like you have a decent chance to bargain with the b/m, if she wants to move away badly enough, she may be willing to reduce her visitation...its a start at least
if she goes to court to get permission to relocate, more than likely she will not be allowed to move away...if she is granted permission, it will likely not be with the kids, and custody would be transferred to you based on the theory you already have- stability for the kids (however you shud check out ca decisions- cornell.law.edu- is a good place to start)
keeping a record of how often you have them and the money you spend on them is good ammo...the long period observed, the better
i would consult a lawyer (most have free initials) and see what you should do...he or she may suggest waiting and gathering more evidence or maybe tell you you have a good chance now.
it seems that the children are doing fine the way things are now, and if you can afford to continue to pay for the schools, i would do so...i would not creat a needless battle with the b/m...
as a s/m, i understand where you are coming from. if you have the kids often, keep in mind that you are better off than most...just continue to let her be a less than ideal mom and it helps your case....

fyi- not all states have custody evaluators...

best of luck!

 

[Query1234]

Thank you stepmomma and ans for your advice!

Thank you both for your advice. I guess I have been on edge with this since b/m's proposal to be allowed to move away. My husband feels that the courts will just allow her to move if she says she just can't afford to live within the restricted districts. Wouldn't they need some sort of documentation or financial records proving that it is unaffordable? She was the one who CHOSE to move out on her own. She was previously living with a relative who made things SO easy for her but she wanted to live on her own so she didn't have to listen to their advice/opinions about how good she had it with me being in the kids' lives (which is the truth) and my husband being so cordial to her, etc. So for her to say that she can't afford to live here is ridiculous. She made it so that she can't afford it. Plus she is also lying about how much she pays for rent as the place she lives has a website which clearly lets people know how much it costs to live there. We are having to move soon so we were checking out various websites for rentals and came across her complex's site. We will confer with our lawyer and see what he says. I hope that the court won't allow her to move if she wants to keep the visitation the same. It's so hard now to keep school work consistent as the older one is struggling through her studies and does not get the same support at her mom's house as she does at ours. Thanks again.

 

[Query1234]

Thank you stepmomma and ans for your advice!

Thank you both for your advice. I guess I have been on edge with this since b/m's proposal to be allowed to move away. My husband feels that the courts will just allow her to move if she says she just can't afford to live within the restricted districts. Wouldn't they need some sort of documentation or financial records proving that it is unaffordable? She was the one who CHOSE to move out on her own. She was previously living with a relative who made things SO easy for her but she wanted to live on her own so she didn't have to listen to their advice/opinions about how good she had it with me being in the kids' lives (which is the truth) and my husband being so cordial to her, etc. So for her to say that she can't afford to live here is ridiculous. She made it so that she can't afford it. Plus she is also lying about how much she pays for rent as the place she lives has a website which clearly lets people know how much it costs to live there. We are having to move soon so we were checking out various websites for rentals and came across her complex's site. We will confer with our lawyer and see what he says. I hope that the court won't allow her to move if she wants to keep the visitation the same. It's so hard now to keep school work consistent as the older one is struggling through her studies and does not get the same support at her mom's house as she does at ours.

Also, they didn't require a counselor's evaluation in order to modify custody. Both times my husband and his ex went to mediation, it was based on one meeting between the mediator and both parties. He really got screwed the first time because the mediator didn't even want to look at letters of support or evidence that my husband had. She just automatically said that primary custody should go to the mom because the kids were young girls and that's that. He was crushed! He'd been the more nurturing parent all along. The second time, we had my "record book" and a calendar of dates that she actually had them over court designated times. B/m had us keep the kids 65% of the time when it was supposed to be the other way around. We took that opportunity to modify on paper custody orders and won. So hopefully, she won't push trying to move, but if she does, I hope my "record book" will suffice as evidence once again. Thanks again.