Choosing Custody Response

[RedPill]

Hello everyone.

I have been in a 10+ year marriage and own a home together. We have a D15. UdstbxBPDw filed for surprise divorce last month. In discussion with me, she said that D15 wished to stay with both of us. I thought that implied that we would both pursue Joint Custody all around. However, her Petition requests Joint Legal Custody but Sole Physical Custody to her with Visitation for me. What is the best strategy to respond? Should I also request Sole Physical Custody?

I am the main earner with a somewhat flexible schedule, some days, some nights. Since her Mother died, she has been supplementing her small income with income from an inheritance (now gone) and an early trust distribution of which she still has a large amount. She teaches a few classes a week and often travels to the city taking classes or performing in the evening. I traditionally take D15 to school in the morning, she picks D15 up from school and takes to activity, and I pick D15 up from activity and bring home 75% of the time depending on my schedule. I have a provable history of being extremely involved with D15 schooling and activities.

Although I believed I wanted Joint Physical Custody, I am nervous to be in a weaker position in negotiation by requesting less that she is. I don't know how I would actually do Sole Physical Custody unless she continued to do some of the transport in the early afternoon. D15 is almost at driving age but not yet.

If I wanted to fight for Sole Legal Custody I would explain that although D15's Mother can be loving, nurturing, and fun, she is inconsistent and unstable. I would present these facts. She has been diagnosed with ADHD. (She exhibits textbook BPD traits but I wouldn't say that.) She had a traumatic FOO including divorce, abuse, early sexual experiences and drug use. She has paranoid delusions and has accused me of affairs, hiding funds, hacking her computer, and tracking her through her phone, all of which are not true. Through our therapist we met with a computer specialist who refuted her "evidence" one by one as normal computer activity that she didn't understand. She is prone to angry rages and deep depression. Once she said it couples counseling that she wanted to "punch me in the face." In a recent heated discussion she came at me and grabbed me by the arms to keep me from closing a door. D15 has had to tread carefully (like me) to attempt to keep the peace and not upset Mom. She has a history of road rage and dangerous driving (at least once with D15 in the car and twice with me in the car), speeding, screaming at other drivers, getting into arguments/fights with strangers (once with D15 on a trip), loud public arguments, getting hired and then quitting jobs, heavy marijuana use, heavy alcohol use, longtime prescription use, sending cannabis tinctures through the mail to a friend sick with cancer and getting investigated by the police/DEA, chronic lateness, and impulsiveness.

Hm. When I write all that out I wonder why I am allowing my daughter to be near her at all.

Perhaps responses could be split to
a) legal strategy for responding Joint vs. Sole Custody and
b) thoughts about her erratic behavior regarding the pending divorce proceedings.

Hope there's some lawyers out there. Thanks!
--
RP

[david]

What custody arrangement do you think best for your daughter ? That is where I would start.
If you are negotiating/mediation then it is best to ask for more than that and settle for what you think is best. This way both sides "win".
Can you co parent with D15 mom ?
What thoughts does D15 have ? I am not sure how to approach that. At 15 the courts will listen to what she wants.

[RedPill]

Thank you David, those are good questions.

I thought joint custody would be best: I didn't want to deprive my daughter of her mother. However, I am having doubts about the stability of stbxudBPDw as a parent. She is very impulsive and reckless. She has rages. Just last night I overheard her insinuating to D15 in a controlling way that she should leave high school to pursue gymnastics. D15 likes both, is great in school, and enjoys the social aspects of school. But D15 does not have the tools to stand up to her (just like me).

I hope we can settle the divorce without court. But I was surprised that her petition asked for sole custody with visitation after we had discussed D15 being with both of us. Unless it's a standard legal opening position? My lawyers indicated to request what I want (they called it a wish list) and don't seem concerned about what her petition says. Maybe I'm overthinking it.

I think we could successfully co-parent. We've raised a pretty good kid up to us point. I'm beginning to believe that I should have 51% or tie-breaker legal custody due to her instability but I'm sure that will be a fight. I've been tracking childcare/homecare duties and the split is high in my favor, especially now that she avoids the house when I'm here.

StbxudBPDw told me early in the process that D15 wanted to be with both of us. I am doing everything I can to be validating and supportive to D15 to try to counteract the behavior of pwBPD, who has a hard time just listening to D15 without acting like an authority on every subject, which shuts D15 down. D15 loves me and her mother, but will have a hard time weighing against her as we were both well-trained to tiptoe around to avoid an upset.

At the heart of it, I don't want a fight but now I'm scared (FOG) to start the process off in a weaker position. Thoughts?

[david]

In the beginning the courts intimidated me. The biggest reason is I didn't understand the rules of the game and didn't have a plan. It took me a while to figure things out. My first lawyer was horrible and eventually I found another that is much better. My new atty works with me and that is a big help. He explains what our county usually does and challenges my thinking and reasons. If I make sense to him he agrees and we move forward. I have followed what our county "normally" does when that fits our kids best interest and I have also asked for things that are not  "normal". Our custody schedule is 50/50 but not the regular way things are done. I was challenged by my atty on that and he listened and agreed with my reasoning. I was then challenged by the custody evaluator and he wrote his recommendation following my schedule. I was then challenged by the judge and he also agreed with me.
Make a list of things that are not negotiable and stick to them. Ask for more and give in to those things. This could work if trying to negotiate with mom. If you know what she views as important to her and it is not on your non negotiable list then use that as a bargaining chip. It's a game. You need to separate emotionally from mom and focus on what is in your daughters best interest. Also, at your daughters age she can make a lot of the decisions on where she is living by herself. If you get 50/50 and mom goes unstable your daughter can always call you or find some way to your residence. The courts will not force her to go back to a place she doesn't feel safe or comfortable. That is much harder when children are much younger.

[ForeverDad]

Most courts seem to separate the 'custody' legal decision issues from the 'parenting' schedule issues.  So feeling "joint custody is better" so the other parent can still parent is a mistaken idea in most cases.

For example, I have full custody, I have since 2011.  At the time we had equal parenting time and that didn't change because the Guardian ad Litem (child's lawyer) felt the conflict would fade once that was decided.  Well, it didn't so I went back to court to get majority time.  That was another year and a half.  So I now have majority time but only during the school year.

Factoid:  When we first separated and were divorcing the temp order had me at 22% time even though nothing was ever substantiated that I had problem behaviors.  It was a 'standard' father temp order.  Now, with the latest order finally describing her poor behavior, her parenting time is 33% on an annual basis.

Do you see that domestic court is often a little lopsided in it's orders?  So forget the idea that you want to be nice and help mother keep parenting.  Believe me, the system gives mothers more than enough protections and default preferences, no need for you to sabotage yourself in order to help her.

If you seek custody, in most states that applies to making the major decisions.  Next best to full custody is Decision Making or Tie Breaker status.  Either of those don't give you full custody in name but are, in effect, very nearly so.  All that can be somewhat separate from the parenting schedule percentages.  Of course, regardless whether you can get custody or DM or TB, if you can document why you need majority time for the children's benefit as well as to reduce the parental conflict, then aim for majority time.

The point is that you can make the case for the most custody/authority possible and the most parenting time possible.  Even if you don't get it at first, that can still be your goal over time.  It took me 2 years to get Shared Parenting and equal time.  Since it failed it took me another 3 years to get custody, something that many here only dream of.  That too wasn't enough to reduce the conflict so it took me another 3 years to get majority time.  It has been noted here that while you do sprint for the best temp order you can get, it's really a marathon for long term improvements.

[Thunderstruck]

So what I've learned from watching DH go through this process... .

He was never married so it's been an extra hurdle for him. When he moved out uBPDbm kept SD(then 8) from him. He had to start with zero visitation and zero rights. He could only see SD whenever uBPDbm allowed him to.

When he filed, DH asked for 50/50 and equal decision making. uBPDbm countered with primary timesharing and full decision making (our state doesn't do residential and non-residential parent).

When they finally went to court for a temp CO (which was over a year into the process) uBPDbm asked for a crazy schedule where each day was spelled out and each week was different and the schedule was only specified through May of that year (what were they supposed to do beyond that? I don't know). DH proposed a 2-2-5 schedule (50/50). The judge chose DH's.

Whenever DH would bring up bad behaviors or non-cooperative co-parenting on uBPDbm's behalf, both of them would get chastised. Basically, judges assume that both parents are the problem and are just trying to paint the other one as being bad.

Therefore the best way to prove that one parent is the problem and should have reduced time is to utilize professionals (CEs, CPS, therapists, etc).
(We're 3 years into a CE trying to get primary timesharing and full decision making... .ugh).

Your D15 is probably old enough to be able to speak in court, which means BPDmom is going to try to push D to side with her. D15 is also just about old enough to "vote with her feet". That leads me to think that a trial isn't the way to go in your case... .your strategy might be to try to mediate and settle. If you go that route, I would suggest that you ask for more than what you want so you can give some of it up to let BPDmom "win".

[RedPill]

Nothing much has happened but I wanted to check in. The initial paperwork is still getting processed. I decided to ask for joint custody but told my lawyer I wanted to go for Tie Breaker or Decision Maker status. My daughter will be 15 in a few days which makes a protracted custody battle rather pointless. But if my stbxudBPDw decides to push for full custody I'm ready with documented childcare time of 66/34 to me.

Weird thing is, stbx is taking herself out of the equation; she is closing herself in her room (our old bedroom) morning and night so I wake D15 up, make breakfast, take to school, then pickup from activity in the late afternoon, take home, make dinner, and help with homework and stbx doesn't show her face. Stbx only has about an hour's worth of contact per day picking up from school and taking to activity. I end up with about 4-5 hours of quality childcare time to her 1.

Hoping this is not the calm before a rage storm. Thanks for the good advice and waiting for he other shoe to drop... .
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RedPill

[david]

We have 50/50 currently in our order. Both boys tell me stories of ex just staying in her room and having no interaction with either boy when they are with her. I suspect it is depression or something similar but I have no idea. They make their own dinner on many occasions, go to sleep when they decide to, etc.

[ForeverDad]

Her demanding "Sole Physical Custody to her with Visitation for me" is one you can definitely contest.  She files whatever she wants and you file whatever you want, rather, consider is best for your daughter.

Generally court is less unfair than an entitled or obstructionist spouse.  But you need to be proactive, presenting your best documentation as to why your proposals and requests should be implemented.  Be the one with strategies.  We here in peer support have immense collective wisdom on reviewing and recommending strategies.  We're limited since we're remote and not lawyers, but we are still remarkable sounding boards to test ideas and concepts.

[RedPill]

Three weeks have passed since I began this thread. Here's an update:

I ended up filing for sole custody with visitation. Eventually, I waved away the FOG and got it into my thick skull that my "ideal world" scenario where joint custody with a stable, healthy mom would be best for my D15 was unfortunately not the reality. UstbxBPDw continues to shut herself in her bedroom when she is home.  She doesn't participate in D15's school activities or planning, doesn't make food for D15 or help with homework when home in the morning or evening, and isn't paying for any household expenses including groceries, utilities, or mortgage. I wake up D15 in the morning, make her breakfast, and take her to school while pwBPD stays in her bedroom with the door closed. PwBPD picks up D15 from school, sometimes buys lunch, and transports D15 to her after-school athletic activity 4 days a week, which takes about an hour. I pick up D15 after her athletic activity, bring her home, make dinner, help with homework if needed, and interact with D15 until bedtime while pwBPD is either not home or staying in her bedroom with the door closed. PwBPD may come out for 5 minutes to talk with D15 during that time, or not. As of late April, childcare duties are 73/27 in my favor and I have the spreadsheet, calendar, and diary to document it.

It has taken me a while, but I am beginning to give myself credit for being a stable, hardworking, available parent. PwBPD's claims that "you were never home" or "you made me take care of D15" are not holding up to the light. My relationship with D15 is growing and strengthening just as PwBPD's is waning from self-inflicted wounds. I have given up trying to figure out what pwBPD is thinking and doing. It is sad for her, but not surprising any more.

Now we are gathering financial data. My income is pretty static and I have no individual resources except my retirement account. PwBPD has a savings from an inheritance and individual investments, loans, and debts that she has to disclose. We'll see how forthcoming she is. I have some of the info but not all.

Thanks for listening and the previous advice. There will be more to come... .
--
RP

[david]

Make sure to document what is going on in the house. An entry each day detailing how the day went, who drove D15 where, who made breakfast, lunch dinner, etc.
I did that concentrating on our boys school work. I filed to modify custody and it took close to three years , because of ex's legal tactics, before we went to court. I had copies of every homework for that time period and one sheet of paper spelling out the total number of hw, number done with mom, number done with dad, amount that was completed and correct by both parents, etc. Our youngest was in 3rd, 4th, and 5th grade and many of the things were incorrect when done at his moms. I believe it was 45 %.  In fact, he even complained that mom made him change answers that were correct because she insisted he was wrong ? She graduated college too ?
The three year pile was rather large so the single sheet made the judge happy. My atty was introducing it as evidence so you need three of everything. One for the court and one for each party. The judge looked at the pile on his bench and saw the top sheet. He asked ex if she agreed with the top sheet. It was up to ex to agree or not. She knew I was telling the truth and agreed. The single sheet of paper was introduced as evidence. Evidence holds more weight then verbal testimony. Evidence must be presented as such and it is a process to tag,etc. Both boys did over 95 % of all their homework when with me. From that point on ex had nothing to counter with. The fact that she dragged things out so long actually made the evidence even more convincing.