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Hi folks! I haven't posted in a while so I thought I'd give you an update.

I got some OK temp orders. After my lawyer requested a temp orders hearing, stbx's side agreed to my state's standard possession order and the child support payments we would have if I had primary custody. He just refused to actually say I have primary custody (or how they put it in my state, "the right to determine the child's residence"). My lawyer told me to go ahead and take the deal, because basically I was getting custody of D5 in everything but name, and this would save me the expense of a temporary orders hearing.

Well now it's later and he's requested the standard possession order with him as the child's primary residence and child support from me. My lawyer's given me a deadline of Nov. 11 to gather my discovery evidence for her, so she'll have time to go through it before she needs to turn it in to his side on Nov. 27 (the day before Thanksgiving).

I told stbxH he can have D5 this coming weekend even though it would normally be a weekend I have her. I didn't tell her it was because I need that time alone to get all this stuff ready, and he didn't ask why I was suddenly being generous like that. (I would have preferred to have a friend babysit her, but none of my friends were available).

I'm feeling a lot of pressure to not mess this up. My friends have been trying to reassure me that there's no way he's getting custody of her and he's only wasting money by even trying, but just the thought of him getting custody makes me so scared and angry.

I guess if anyone can give me some pointers on what kind of evidence might be useful I'd love to hear it. I already have some ideas but would love to hear input from other people who have been through this before. I've already written before about how little parenting he did before the separation, but how do I prove that to a court? What kind of records would be helpful to gather to show that? I want to make sure I don't miss anything.

I'm also nervous about handing over my evidence of his abusive behavior. I have a few recordings of him screaming at me (some where you can hear D in there too so it shows she was present and witnessing the incident), several emails, and lots and lots of unhinged text messages. Part of me feels eager to "expose" his private persona, and part of me is nervous that it might not help anyway since he never actually *physically* harmed me or D.

I've seen his discovery evidence already, and part of it shows how much money he's already spent on his lawyer. I was a bit shocked to find that he's already spent about twice as much as I have! He either has a really expensive lawyer, or he's been having a lot of long conversations with his lawyer (or maybe both). Anyway, since he makes a lot more money than I do, I hope he's not just trying to outspend me in order to win this case.

One concept I learned from my years in family court was that courts are generally reluctant to "fix what isn't broke".  In other words, since you two agreed to a status quo then if he wants it to substantively change, then court will wonder what is the basis for the change?

For example, I'm assuming you have majority time, so if he's asking for primary residence and child support from you, then isn't he also seeking majority time?  If so, then that would be a major change from what had just been agreed.  Sounds fishy.  Then what changed from the time of the prior agreement until his filing now?

Of course, your court may have different criteria than mine.  I recall that when I had a temp order and minimal time (alternate weekends) - and I earned far more than my stbEx - I owed child support.  When I gained equal time and became the residential parent for school purposes in our final decree, I still was liable for child support.  A couple years later when I gained legal custody, I still paid child support.  All because I earned more income than her.  Only when I gained majority time another couple years later did my child support end.

Right now I have majority time and he's paying me child support. The only thing that hasn't been determined is who gets to determine her primary residence and determine her school. Those rights are usually given to the parent that has majority time. He didn't want those parts in the temp orders, so the temp orders said that those things won't be determined until the final order.

Now that we're doing the discovery part, he's asking for majority time and child support (basically reversing the schedule we have in the temp order) and for him to determine her primary residence and her school.

Why is he doing that? Could just be ego. I could see him wanting the court to declare him to custodial parent instead of me because that would be him "winning" against me. The thought occurred to me that it also might depend on his moods. Maybe he was in a good mood when he signed the temp orders and now he's mad at me for some reason.

As I wrote before, he originally asked for 50/50 time in the temp orders, with child support based on the discrepancy of our two incomes. He says that the temp orders he ended up agreeing to was a "major concession." Now he's asking for even more than that.

He's also got skewed perceptions. When I was searching through my texts from him, I found one with him saying it's not fair I get D so much more than he does. Actually the SPO is something like a 55/45 split, and he gets her more weekends than me, so he gets more of the fun parts of her life.

Well, when my lawyer was encouraging me to go ahead and sign the temp order, she said this is great because it "gives you custody of her in everything but name," so when we get before the judge, he can "just rubber stamp it" and say I have primary custody (and the right to determine the child's residence and school). So she seems to be agreeing with ForeverDad that my ex would have an uphill battle changing things around now.

I just hope so, because the thought of him getting custody, however unlikely, is so scary to me. He's still saying a bunch of inappropriate things to D5 when he has her. The other day she asked me, "Have you been eating wine?" I was like, what? and she then said Dada wanted to know if I'd been "eating wine, and that's why I moved." And then she said that Dada said maybe I moved out because I "love someone else now," and asked if anyone else has been here. I told D5 that the only person who's been staying here has been my (platonic female) friend who stayed with us for a bit right after the move to help out.

So he's been speculating in front of his 5 year old daughter that her mother might be an alcoholic (D5 doesn't even know what wine is), and that I must be cheating on him (which he accused me of a lot when we were together). Ugh, I know he doesn't have any friends, but can't he vent to his mom or sister or brother in law or someone like that and leave D5 out of it? She's FIVE.

Quick thoughts:


Handwritten journal, fridge calendar, or Google doc type calendar of exact times she was with each parent. Could be something like this (doesn't have to be exactly this):

Friday 11/1 with Dad 4pm-7pm, with Mom rest of time (3 hrs Dad 21 hrs Mom)
Saturday 11/2 with Mom until 5pm then with Dad rest of time (17 hrs Mom 7 hrs Dad)
Sunday 11/3 with Dad until 2pm then with Mom rest of time (16 hrs Dad 10 hrs Mom)

Could be on the calendar or in a separate doc, a record of what you did with D5 when you two were together plus anything she says that you are concerned about:

Friday 11/1 picked up D5 at 7pm, yogurt before bedtime, bath & washed hair, read bedtime story, D5 asleep by 9pm & slept thru night
Saturday 11/2 library 10am, PB&J for lunch, no potty accidents, zoo with Grandma, rest time 2-3pm, early dinner, dropped off at Dad's at 5pm. She said she didn't want to do X with Dad.
Dad called at 8pm with question about ABC.

Physical receipts, digital receipts, bank statements, texts, and social media posts can help you reconstruct/remember what you did on those days, so you can put it in the journal/calendar/record.

You can do a "cover sheet" summarizing key time spans with stats. For example, you might do a "pre divorce" cover sheet summarizing how much time you each spent doing what with her (i.e. for 6 months pre divorce, you did 92% of baths, 89% of bedtime, 95% of driving to preschool) -- and have that cover sheet "on top" of your stack of data recording each day's specifics. Basically, make it really really easy for a judge NOT to have to do the reading and analysis, do it yourself and you can say "this cover sheet summarizes these 3 binders of previous info" and then the question to you and D5's dad might be: "do either of you object to this being accurate".

You could also do a cover sheet for post-divorce. Maybe there are key areas where you are still doing the same amount of care of D5 and that would be good data to highlight.



What's his "currency"? I.e., what is so important to him that he'd take it instead of primary parent? Is it money? Holiday time (can you give him Christmas every year and would he feel like he "won" over you if he got that)? "Tiebreaker" in an area that isn't as important to you (eye doctor, dentist, religion)? Don't lead with offering that! Don't start your trading/bargaining from your desired final position. Position yourself as asking/demanding much more, and work your way down with "concessions" to him (of things you're already OK with giving).

This isn't going to change.  I think the key is to help your daughter understand that her dad is just bitter and slinging mud, although given her age, it's easier said than done.

I still think the most helpful advice I received about how to approach disinformation/rumors from my ex was to ask my kid "why do you think that?" or "what do you think about that?"  It gives them the opportunity to use their mind, and understand they can and should learn to trust their own experience, rather than going by what the negative parent is saying. 

If I got the "have you been eating wine?" question, I'd tell the truth, but then also follow up with what my daughter thinks about it, e.g. "Do you see me drinking wine?" or "Why did you want to ask that?"

Regarding what you should collect, I agree with everything Kells said, but also I would include any information about appointments, doctors appointments, etc., and who takes your daughter to them, and also whether you've done things like register your daughter for daycare, or extra-curriculars, and that sort of thing. 

I think your STBX-H definitely has an uphill battle here, but an aggressive rebuttal of anything he claims may be necessary.

You might want to ask your attorney if he/she can get the information underlying his claim for primary custody, i.e. what evidence is he going to present.  You can then focus your efforts on collecting evidence that can be used to refute anything he might be planning to claim.  I think that may have to be disclosed beforehand.  You can't introduce primary evidence at trial without having each side have an opportunity to challenge it, although I'm not sure how this works out procedurally in your case.

My uBPDxw filed an at fault divorce and wanted to be primary parent.  We ultimately converted to a no fault agreement with a 50-50 schedule. 

Some things I did to "win" ...

- kept a journal of everything I did every day for three years leading up to the first pre-trial hearing (which didn't happen - we settled at the courthouse).

- reconstructed history of every doctor's appointment, parent-teacher conference, playdate, birthday party, pickup, dropoff...  fortunately I use Google Calendar and Gmail so it was relatively easy to extract history.  uBPDxw claimed was "never" home traveled 50% of the time or more, and she was primary parent.   travel logs, etc., proved otherwise

- submitted everything to my atty so that it would become work product in case OC attempted to gain the info via discovery - I wanted to hold it back in case we actually went to trial

- agreed to stipulations which became status quo - including the 50-50 schedule.  very hard to change later.

- accepted and documented every single request to watch the kids on her time - which was frequently

- authorized my atty to have a sidebar conference with OC and to communicate that various claims and allegations were false, fully anticipated, and would be easily disproven.  my extensive documentation gave my atty confidence to do this, which led to the settlement

- considered interrogatories and absolutely would have invested in that process if we hadn't come to an agreement.  I think the threat of interrogatories also worked to my advantage as OC probably had some sense that uBPDxw would have contradicted herself.

One basic piece of advice is:  the goal is not to show that your stbx is unfit - which can be difficult unless there are conspicuous / documented dangerous behaviors in play - rather - it's to show that you are great, reliable, and fully devoted to your kid. 

I have a feeling that you'll be able to pull together a lot of history that clearly shows that you're easily the parent 50% if not much more of the time, in addition to your concerns about personal safety, abuse, etc.   in other words, your stbx will have a hard time arguing to be primary parent - he'll be lucky to get 50%.

Take care and good luck! 

I wish I had kept more detailed journals than I did. It sounds like some of you journaled a lot! I did keep a journal of abusive incidents from about September 2023 to February of 2024, but honestly I quit because at that point I was writing down so much it was taking up a lot of time, and I switched to using what little time I had to preparing my escape from the relationship.

I think I could probably get records to prove that I was the one who almost always picked her up and dropped her off at school. Her preschool teacher could corroborate that I'm the only one who ever went to parent-teacher conferences. My therapist suggested calling her pediatrician's office and asking them for a record showing I was the one who almost always took her to her appointments. I could probably even prove I was the one who always took her to get her hair cut.

Things like bathing her, dressing her, cooking her dinner, etc. would be harder to prove. The court would have to just take my word on that.

The now-contested temp order... You already have a temp order, though incomplete.  It is supposed to continue until the final decree/order.  If at all possible, defend the current temp order and hence your majority time.  After all, he had agreed to it.  I have no idea how your local/state court procedures compare to mine but mine refused (declined?) to modify the temp order itself.  (Court logic presumably was that it's only "temporary" despite our divorce taking two years.  Hmm, maybe that's an approach you can take, that changing the parenting schedule without your agreement should wait for the final decree and only at that time changes would be based on supporting evidence?)  We did have issues arise that had to be handled in court, but no one changed the temp order itself.

Understand the difference between a court decision (the court decides) versus negotiation and settlement (the parents & lawyers handle it).  Court will try to avoid making a contested decision, hoping the parents manage to resolve it.  In our sort of cases, we can negotiate in good faith but the other person (who has "issues" the court may or may not notice) is usually too entitled so early in the case to truly negotiate, too used to being in demanded authority to realize that the court is The Real Authority.

Holidays...  The court's Holidays list will be very extensive covering all sorts of special days for all sorts of families.  Your task will be to review it and get ex to agree to strike out all the ones that don't apply to your family's past patterns.  Does it matter?  It did in my case.  I gave notice for a vacation near the end of the year and she claimed Kwanzaa simply to obstruct me, She saw it on the list and claimed it even though we'd previously never paid attention to it, ever.

Incidents of past conflict... My court had no interest in listening to incidents I listed if they were over six months old before filing.  I think the legal term was 'stale'.  Of course you might include older incidents if you're trying to establish a pattern of actionable poor behaviors.  Many behaviors can be poor, but the lawyer can describe which may be actionable for the court or children's services.

I think I'll be able to put together evidence that I was the primary/devoted/wonderful parent, but one thing that stood out to me when looking over their discovery request was "All documents evidencing why you have denied [stbx] access to the child." That must be referencing that three week period immediately after I moved out where I only let her see her in video calls (after that I started following the standard possession schedule even though we didn't have temp orders yet).

I think answering that question is going to need me providing "he's a lousy parent" evidence. I did that because I wanted to spare D from seeing his reaction to me leaving him, and wanted to give him a cooling off period before he saw D again. (Not sure if I should mention that my therapist and all my friends were afraid for my physical safety.) Fortunately I have a couple of recordings of him screaming at me in front of D, so I hope that will be enough evidence. Basically I'm going to say, "He can't control his temper around D, and here's some recordings of him losing his temper in front of D, so that's why I kept D away from him for a bit, because I knew leaving him was going to make him really angry."

And I hope that him asking for my justification for keeping D away from him is going to backfire on him because he doesn't know that I have those recordings yet. I'm sure if he did know I had them, he would really not want me to share them with anyone.

Again, I don't know your local courts, but this is what happened in my case over 15 years ago when we had separated...


Odds are the the court will listen to his complaint about the three weeks... and then simply move on.  You did suggest and allow frequent phone or video calls during much of that time.  So be sure to counter his claims of blocked access with the fact you provided remote electronic access.  Surely that is considered adequate for short term measures without a court order in place.

What does your atty say about this?  Isn't the burden on him to make this claim and to provide evidence?  It sounds like his atty's gambit is to attempt to bait you into admitting... something.  They are literally asking you to provide evidence against yourself.

Candidly, I would ignore this request.   If it becomes a court demand, that's different.  He likely has emails or some other documentation of whatever he's referring to.  I imagine your speculation is correct:  he'd like to retroactively establish... something.

However, as FD pointed out:  You already have temp orders.  There needs to be a new situation or circumstance to justify a change.

What this suggests is:  OC is willing to throw whatever to see what sticks.  Tread carefully.  Where is your atty in this process?  Candidly, if this request was relayed by your atty without advice or context - that may also be a red flag.

My suggestion is:  Ask your atty if you are obligated to respond.  If the answer is yes, ask the purpose of revisiting a temporary situation before the temp orders were established.

Finally, the court doesn't have time to check all your time stamps.  You can simply prepare a concise journal along these lines:

2020
- Jan 9 pediatrician
- Feb 23 teacher meeting
- Mar 6 haircut
- Oct pediatrician

2021
Apr 28 haircut
May 17 pediatrician
Jun 8 teacher meeting

The judge understands that *if* necessary, many if not all of these appointments can be validated...  in my case, the mere existence of well documented activities was enough to burst my ex's reality distortion bubble.   In case I wasn't clear - I compiled my activity log / journal retroactively.

The point is:  Make entries super concise so that a judge could simply scan it and conclude you were / are / will be the primary parent.

I'd suggest the following:  next to each entry, have two columns.  Column a = "mom present" and column b = "dad present" and fairly include a few times that dad was present.   This is how to neutralize the argument that he's been present/involved 50% of the time at a glance.  My guess is that you will never have to present this activity log, but the benefit of preparing it - at least for the past year or two - is that it will give you confidence, it will remind you of what you've already done, and it will also give your atty focus and confidence.

Do not prepare any lengthy narratives or pages of descriptions - the court won't read it, and there's no point in paying your atty to review.   Get this into a short, concise, scannable format.

It's an hour or two of work that can pay dividends.

agree with this.

Take a second to consider who the target audience is, and how they approach this.

Assuming the judge has clerks who are going to read it and summarize it, or perhaps the judge looks at it for a few seconds before the hearing... AND has to read a few dozen of these every day and doesn't approach your summary as a unique and important document that they must review, instead just more paper in a stack of crap they would rather not spend their time reviewing, write it out to make the most impact.

I would start with a short narrative summary  that explains what the information below represents before listing out evidence of time with your daughter.

Maybe include in the summary a statement like "this information proves I provided and organized most/all/the vast majority of daughter's care." (whatever it is).

You may want to add something that substantiates your husband's lack of time, like he works as a "BLANK" and so was not able to take Daughter to/from school/appointments/etc regularly.

Another factor to consider is how long your hearing is scheduled for.  Mine were typically only a half hour.  That's not much time to get into the details.  Here's one mistake I made:

Thanks for all this advice! It's very tempting for get sidetracked on this task, so this is really helping me know what to focus on.

When it comes to "All documents evidencing why you have denied [stbxH] access to the child," I found text messages with me saying he could have her X weekend, and him saying he'll be glad to see her after not seeing her for three weeks. I want to make sure they know I only did that for three weeks, and then followed the standard possession schedule for about two months before we had the temp orders in place. Hopefully that will show I wasn't being too unreasonable, just in case he starts complaining about me keeping his child from him.

Another thing that I'm wondering about is his discovery documents contained a couple of things that I think he put in there just to make me look bad. One is a nasty text message I sent to him in August. The thing is, it's taken out of context. I have a file containing the entire conversation showing that I only sent that message after he had been sending me a barrage of repeated text messages all day long begging me to come back to him and wouldn't leave me alone, then I finally lost my temper and replied.

Another is an email he sent to our marriage counselor complaining about something mean I said to him. Thing is, I have several more nasty emails he sent me directly, and some emails he sent the marriage counselor, or between me and the marriage counselor, that again I think show the big picture and make him look a lot worse than what he's cherrypicked here.

So what do y'all think about how to handle this? He sent in a text message and an email that he thinks makes me look bad. The thing is, I have a lot more texts, emails, and even recordings that make him look worse. And he doesn't know about the recordings, but he should at least know about the texts and emails. I'm actually kind of surprised he was dumb enough to open that can of worms. Maybe he doesn't think the texts and emails he has sent me over the years make him look as bad as I think they would.

This is all just the discovery process right now, by the way. I haven't had any hearings yet. We got an agreement on the temp orders without having to have a hearing.

I think you really need to push for a call with your attorney, to understand how he could be using the information, and what the consequences of him painting you in a bad light to the court would be, and what the plan to counter him is.

My guess is he's only told his attorney what a bad person you are and how you're making attempts to block his ability to see his daughter, and not about all the awful things he's done and continues to do.

None of this may come out in court; during divorce proceedings, BPDxw asked for all sorts of absurd things that never mattered in the end, but by their nature tried to paint me as a drunken womanizer (e.g. "all receipts of bar tabs and alcohol purchases from the last 10 years" and "all text messages between me and all third parties").  My attorney took all this laying down; I suppose it was fine in that nothing came of this and we settled the case basically at what the expanded standard possession order for our state was. 

But if your husband is truly going to press this aggressively, you'll need to respond in kind, and I would mention to your attorney all the documentation you have of him being argumentative, and - to the extent you have it - dates and context of angry fights he started, including threats of violence.

even if some of this is just he said/she said, if the court finds you more credible than him, it could affect the outcome.

William Eddy discussed lawyers in his inexpensive handbook Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder.  Our sort of cases require us to find an experienced proactive lawyer.  No, we don't need aggressive.  Nor is a collaborative lawyer likely to fit our needs.  Nor do we hire just anyone, or not necessarily the first we interview.

So in our estimation qualities to seek are experience in hearings and trials.  You might end up settling before a rial but the lawyer needs to have ability to succeed at trial.  (My divorce was settled after two years of my ex's obstructions and delays but a settlement didn't happen until we arrived at court on Trial Day.)

Another quality is having practical, time-tested strategies.  "Winging it" isn't necessarily a strategy.  I have to admit that my lawyer seemed a bit passive but, looking back, he was aware also of what usually didn't work.  So we slogged through it all and every time we had a major event, I walked out better off.

One concept that I had to learn in my court system was that once an order was made, they were reluctant to make a big change to  correct it.  (It knew she had a favorable order, it knew she was making endless unsubstantiated allegations, yet correction were small and slow.)  Courts seem to prefer minimal changes and then seeing whether that resolves the issue.

My point is that you parents agreed to a schedule.  Court is likely to - behind the scenes - frown at him seeking to turn around and undo the agreement so quickly.  Court may not come out and directly say so, I noticed court never came out and stated it bluntly, but it passively approved or declined.

@Gerda,

First - Your good instincts are coming forward.  Listen to them.  Yes, some of this discovery process is an attempt to bait you into an emotional conflict.  The fact is:  This is a side show.

The court will focus on division of assets, and the best interests of your daughter.  Full stop.  Time spent focusing on why you and your stbx didn't/don't get along is wasting the court's time - and if you end up in front of a judge, you should say so - along the lines of "I'm sorry for wasting the court's time with past emotional conflicts that have no bearing on division of assets or the forward parenting schedule and responsibilities. It's not my intention to ask for the court's time in consideration of text messages - however - if necessary - I am prepared to review these messages with full context"

The fact is:  You probably won't have a chance to say anything like this.  But - being prepared to say it is key.

Unfortunately, it looks like your stbx's atty is 100% happy to ramp up emotional conflict - this is a distraction and not really pertinent.  You should make your atty aware that you're wise to the game, e.g., "I don't want to spend any billable time going over this - we need to focus on division of assets and parenting schedule" and "This is obviously a side show. Great for stoking conflict.  I prefer to spend billable time on solutions, not stoking conflict - how do you suggest we focus this call?"  etc.

In other words:  You need to manage your case.  Your atty may resent being managed but also may respect the fact that you're seeing this process clearly.  You may wish to authorize your atty to have a short call with OC to inform OC that the gig is up, and you will not entertain the sideshow.  Proceed to a proposed settlement, or you will be prepared to present full documentation that unravels whatever distorted claims your stbx is hoping to make via discovery.  i.e., attempt to fast track the process.

It's a can't lose gambit:  If your stbx and OC reject this approach, they are handing you an opportunity to state that a reasonable settlement was rejected when/if you get in front of a judge.  If they accept the approach, you can start working on stipulations and eventually a final agreement.

Every chance you get, demonstrate that you are even headed and rational and reasonable.  It will drive your stbx nuts, which can play to your advantage - esp once OC realizes that your stbx is nuts (if not already) and decides to focus on other more lucrative cases...

In summary:  The judge doesn't care about those text messages and probably won't read them.  To get that stuff entered into evidence, it may need to be authenticated by a 3rd party - or you may need to swear under oath that you did in fact send the text.  Your atty can probably make it disappear via procedural objection. And worst case:  You can also enter similar evidence - so the endgame for your stbx is unclear.  What bearing do these texts have on assets or parenting plan?  Who's going to read all these texts?  Your daughter in the distant future?  If he's trying to smear you, he's going to end up smearing himself in the process.

Again, I'd ignore this request unless your atty clearly states how/if you must comply, and proposes a countermeasure.

Remember, this is the discovery process. And as you said, your lawyer has asked you to gather everything so she can decide what is responsive and what needs to be turned over. This isn't the time for you to self-edit, as you might lose the right to submit at trial any evidence that was responsive but not disclosed. If there's stuff you're worried about, give it to your lawyer in a separate folder (or email/file) and describe your concerns. And *definitely* give the full threads of emails that show context for what your ex sent.

I also agree with everyone who has commented that you don't need to worry much about a 3-week period!

To make a long story short, at one of my hearings my ex waved a paper in the air and said her friend had written a statement.  My attorney immediately objected since he couldn't put a piece of paper on the stand for testimony and questioning.