Looks like I'm going back to court

[motherof1yearold]

Long story short, ex and I went to court then ended up mediating 6 months ago. We have been on a 50% schedule that was every 2 days , and now it has switched to 4/3 - alternating weeks to make it even.

This morning my ex's  Mother (not him) informed me that we are going back to court and that my daughter being with me at my house is 'unacceptable'... .

Ex has been BREAKING his back in court trying to get at least 60% custody so he can  get child support. His family is obsessed with money and believes they are entitled .

So we will both be going for full custody.

I've got so many questions! Like which things can be used as leverage ? Can I use the fact he was abusive to me in front of the child?

Is there any chance of him actually winning?

[catnap]

Focus on his behaviors.  You can ask that both of you be tested--Matt has written extensively on the best test to request that is difficult for a disordered person to fool.  You can also ask for hair follicle drug testing--again you cannot "do" anything to the hair follicle to cheat.

Does he associate with any unsavory people?  If so document--most counties have records available on-line.  In my son's case all of her friends had arrest records.  We were able through our county's jail records and criminal court records prove this.  Of course his ex's arrest and court records (felony drugs) were also included. 

The better you can document the bad behavior (recordings, criminal records, etc.), the better advantage you have in a he said, she said scenario.   

Do you know of any of his "hot" buttons?  Things your attorney could ask him while he is on the stand that could cause him to let the mask slip? 

[motherof1yearold]

Great suggestions Catnap!

As far as the hot buttons- I'll have to think about that one.  I already bet he is going to walk into court with a HUGE sense of entitlement , just like last time. He had the nerve to say "I deserve more custody because I am an outstanding young gentleman" I wanted to   !

My key points I have so far against him are :

*His criminal record

*The fact he has withheld my daughters prescription medication from me while she was in my care

*His drinking and driving, improper car seat use and installation

* General unwillingness to co parent

Things I'm not sure are relevant :

*The fact his negative advocate parents only chose to be a part of the kid's life when we divorced



Also, I have an understanding that he has threatened me several times that he is bringing people into court to lie for him.

[GaGrl]

I wish you had gotten the incident with the "ride home" that turned into a near kidnapping on file as a police report. The fact that he involved your daughter in this would then be documented. Same with the mail interference.

You can't hesitate to get his actions documented.  They aren't going to play nice - you know that by now.

So to what you have... . how much time does your D spend under your care vs time under his care? Not his parents... . him. Is he employed? What is his employment history?

I agree that the strongest approach right now is to get psychological assessments and drug tests that he can't fake.

Also, regarding friends to testify, do you have anyone who could/would testify regarding g his driving under the influence of alcohol or drugs?

[motherof1yearold]

I might have people to testify to that. I've got one friend who could , if he doesn't have to work that day.

As far as his employment, he is actually employed at a private school right now. His employment history is mostly working as a cook, 2 jobs at a school, and in construction.

He works about 10 hours a day, and even when he is NOT working he still does other things all night while his parents watch the baby.

I don't have a report on the last incident, but i did file a report on the mail issue.

I would love to do the psychological assessment, but money is tight and I know if I order it , that I have to pay for it.

The drug test may be a waste, since he has already admitted in court to his drug history (criminal record proved it)

[GaGrl]

You are going to need to show the danger of his continued alcohol and drug use, not just what he admitted to in the past. He will just say he doesn't do that anymore. Otherwise it becomes he said/said situation.

[motherof1yearold]

Dang. That is going to be pretty hard to prove.

[GaGrl]

That's why you combine the history of his past arrests and convictions with your request for a psychological evaluate and drug tests. It may take a little while, but he will probably not be able to fool the evaluation or pass the tests for any extended period of time.

[motherof1yearold]

How helpful is it if  he DOES show to be a BPD on the evaluation?

[GaGrl]

You then have objective info to which the evaluators can speak to in recoonending which parent would provide the healthiest situation for the child.

But you still need to focus on which behaviors he exhibits that put your D at risk or are not as good a situation as you can provide. For example, if he works 10 hours at a stretch, what is the situationwhen you have her?

[livednlearned]

I've sat in court and listened to roughly 10 cases throughout the duration of my custody battle. I learned a lot from that, and it made me realize how much tactical stuff goes on in court. Is that something you can do? Go to your court and listen in to see how your judge rules, and what happens in cases that are similar to yours?

For example, if you agreed to 50/50 in mediation, then you'll have a much harder time proving that you should be awarded full custody -- you'll need to demonstrate a significant or substantial change between the time you consented to the last order, and the new motion to change custody. If you knew he had a criminal record prior to marrying him, or prior to getting pregnant, or prior to signing the order, the court will wonder why you suddenly find his criminal record to be a problem now.

Court is also less likely to believe any family members or friends. Better to get a third-party professional to testify. If you are friends with that third-party professional, it will come out in court, and they'll lose some of their credibility. So when your ex withholds medication, call your pediatrician and ask them what the consequences might be to your D's health if her father does not give her the medicine. Establish a record somehow with professionals who encounter you, your ex, and your D.

If he is partying, doing drugs, and drinking, and you are truly concerned, then you need to call the police to do a well-child check. Your concerns need to link directly to the welfare of your child. The court will want to know why, if you were so concerned, did you not call the police to check on your child. Even if you did, and the police did nothing, you can show that you were concerned enough to call law enforcement.

I saw a case where the ex husband wanted a DVPO. He said his ex wife threatened him, and had her bf follow him in his pickup truck. The judge wanted to know why the ex husband, if he was so scared of this guy, did he not call the police?

When you listen to these cases and hear what kinds of questions the court has for people, it helps you understand how they think. If you really, truly believe something, you need to show that your judgement and actions meet their criteria for credibility.

[motherof1yearold]

Awesome reply livednlearned! I appreciate that!

There has been a handful of him drunk driving (sometimes with the baby) in which I have been forced to call law enforcement. He always gets let go, or they don't find him. In a matter of fact, I just called again last night because he wouldn't let someone pick him up , and drove drunk once again.

Hopefully my judge can understand that I was only trying to be cooperative by going to mediation. I was also extremely intimidated by having my child withheld for 30 days.

Hope that doesn't break my case!

[livednlearned]

Hopefully my judge can understand that I was only trying to be cooperative by going to mediation. I was also extremely intimidated by having my child withheld for 30 days.

Hope that doesn't break my case!

Anytime you agree to something, it makes it harder to argue the opposite. Going forward, never cooperate if you don't think it's best for your D. Those days are over.

One thing I realized sitting in court watching other people go through their day in hell: If you both make bad decisions, and you both have bad judgment, it's even. Meaning, maybe he does drugs and rages at her, but if she threatens him and/or makes bad choices, then what can the court possibly do for them?

Also, your ex in-laws might be blowing smoke. Don't let them rent space in your head. If it's hard for you to get a change in custody, it will be just as hard for them. Trying to change custody so soon after it was granted is a red flag. He needs to demonstrate that you've become a risk to your child.

[motherof1yearold]

Good points

[Matt]

I would love to do the psychological assessment, but money is tight and I know if I order it , that I have to pay for it.

Are you sure that's true?

Where I live, the cost is usually split.  I had to pay initially, but got back half in the settlement.  If one party has more cash on hand, that's probably who will have to pay up front, or the court might order both parties to pay half.

You don't "order" it, you file a motion and the judge may order it.

Could be a Custody Evaluation - ours cost $5,000 - I paid it all and got back $2,500 in the settlement.

Or maybe just psych evals - our MMPI-2 tests cost $500 each, and we each paid for our own.

Your lawyer should know how it works there.

I would certainly suggest objective testing if you it's possible - the only way to get any disorders out on the table so that can be an important factor in the case.  If you can connect his diagnosis with dysfunctional behavior, the picture will be very clear.  Then you can add scholarly research which shows the long-term impact of a parent's psychological disorder on the kids - much higher risk of addiction, depression, and lots of other problems - to show that is riskier to put the kids with the disordered parent.

[motherof1yearold]

Yes, I am sure. I would love to do it, but right now there isn't even money to pay my lawyer, so I'm going to be at a huge advantage all around

[Matt]

Yes, I am sure. I would love to do it, but right now there isn't even money to pay my lawyer, so I'm going to be at a huge advantage all around

In my state, if one party has more access to cash, you can file a motion, so that party has to pay your legal costs, pending the settlement.  Or your attorney can just wait to be paid out of the settlement.

It's a basic principle of the law* that one party can't be put at a disadvantage because they have less money, at least in a custody case.  Talk to your lawyer and find out your options;  if he doesn't offer you any options, talk to a different lawyer.

* I'm not an attorney, and nobody here can give you legal advice.  Just saying how it works where I live.

[Matt]

Dang. That is going to be pretty hard to prove.

It may be possible to ask that both parties be randomly tested from now til the case is decided.  A pain in the neck for both of you but maybe important.

If he is an alcoholic, it's likely he'll fail the test sooner or later.  Make sure it's a blood test or urine, not a breathalyzer.

[motherof1yearold]

I think in court if I don't have a lawyer ,and my ex does, his lawyer may not be allowed to represent him.

[Matt]

I think in court if I don't have a lawyer ,and my ex does, his lawyer may not be allowed to represent him.

I've never heard of that.  I've always heard that if one party doesn't have an attorney, they represent themselves, but the other party can have an attorney.

Maybe things are very different where you are, but I would suggest poking around and asking a lot of questions - maybe somebody at the courthouse could tell you how it works there, or you can talk to some attorneys - don't sign one up til you're sure - let them know about the $ imbalance and see what they suggest.  In my state, you will not be put at the disadvantage of not having an attorney just because the other party has physical control of the money.

[GaGrl]

I think in court if I don't have a lawyer ,and my ex does, his lawyer may not be allowed to represent him.

This doesn't sound right, especially for custody cases.

Sometimes, in a criminal case, a defendant will show up without a lawyer, and the judge will continue the case until the defendant obtains representation or can get a public defender appointed.

Yours is not a criminal case -- it's a Family Court proceeding.  You will need representation, and if the ex's parents are threatening that there will be another custody motion, you need to do your research now.

Ask your DV counselor what options they suggest.  Talk to the county Legal Aid and ask them for options or recommendations.

Do NOT sit and wait for something to be done to you.  You could be very unpleasantly surprised if you walk into court thinking that the judge isn't going to allow the other side to have a lawyer!

[motherof1yearold]

I think in court if I don't have a lawyer ,and my ex does, his lawyer may not be allowed to represent him.

This doesn't sound right, especially for custody cases.

Sometimes, in a criminal case, a defendant will show up without a lawyer, and the judge will continue the case until the defendant obtains representation or can get a public defender appointed.

Yours is not a criminal case -- it's a Family Court proceeding.  You will need representation, and if the ex's parents are threatening that there will be another custody motion, you need to do your research now.

Ask your DV counselor what options they suggest.  Talk to the county Legal Aid and ask them for options or recommendations.

Do NOT sit and wait for something to be done to you.  You could be very unpleasantly surprised if you walk into court thinking that the judge isn't going to allow the other side to have a lawyer!

I know for mediation , if one person has a lawyer , and the other doesn't , that persons lawyer is not allowed in the room. So I thought it may be the same in court.

[momtara]

The facts are on your side.

It's the anticipation that is scary, and the unknowns.

This man is a menace.  (So's his mom.)

[Matt]

Mediation and court are different.

I've never heard of a judge not allowing one of the parties to be represented by an attorney in court.

[motherof1yearold]

His lawyer is dishonest, and aggressive. Since I won't have my lawyer court may be a disaster now.

[ForeverDad]

Not necesarily.  If I recall the judge gave you somewhat favorable terms when you eventually got into court, going from 0% on ex's ex parte motion to 50%, though supervised until you mediated.  The judge will treat you fairly, and perhaps give you a bit of subtle assistance now and then if you represent yourself (as in, "Ms MO1YO, are you going to object to that question?" but not having a lawyer will most likely be a disadvantage.  Not that you get discouraged or give up, just that it's a higher level of care and caution needed.

(In any case, request for him to pay your legal fees.  The fact that your financial resources are limited may make your case better for reimbursement, maybe.  You may not get it, but at some point, after the umpteenth trip to court, you might.)

States have different rules for mediation than for court.  Some allow lawyers in mediation, some don't.  Mine doesn't.  Some states allow mediators to report to the court about mediation, others are more like a black box and only allow reporting of what was settled.

His lawyer is dishonest, and aggressive. Since I won't have my lawyer court may be a disaster now.

His lawyer is not there to be fair, he's out to get a win for his client.  That's just the way the adversarial concept works.  Hopefully the judge is the one to prevent things from getting too far out of hand.

[motherof1yearold]

Not necesarily.  If I recall the judge gave you somewhat favorable terms when you eventually got into court, going from 0% on ex's ex parte motion to 50%, though supervised until you mediated.  The judge will treat you fairly, and perhaps give you a bit of subtle assistance now and then if you represent yourself (as in, "Ms MO1YO, are you going to object to that question?" but not having a lawyer will most likely be a disadvantage.  Not that you get discouraged or give up, just that it's a higher level of care and caution needed.

(In any case, request for him to pay your legal fees.  The fact that your financial resources are limited may make your case better for reimbursement, maybe.  You may not get it, but at some point, after the umpteenth trip to court, you might.)

States have different rules for mediation than for court.  Some allow lawyers in mediation, some don't.  Mine doesn't.  Some states allow mediators to report to the court about mediation, others are more like a black box and only allow reporting of what was settled.

His lawyer is dishonest, and aggressive. Since I won't have my lawyer court may be a disaster now.

His lawyer is not there to be fair, he's out to get a win for his client.  That's just the way the adversarial concept works.  Hopefully the judge is the one to prevent things from getting too far out of hand.

I'm not too overly excited about my judge.

I may be able to look in free legal representation but I've noticed they are hard to come by. My sister tried to get one and it didn't work out .

[Matt]

His lawyer is dishonest, and aggressive. Since I won't have my lawyer court may be a disaster now.

Do not allow yourself to be put into an unfair situation.  Take action to find out what your options are.

If you find yourself in court, facing an attorney but without your own attorney, say loudly and clearly, "I need time to find an attorney I can afford."  Make it very clear that you are not prepared to take part in court without proper representation.

I have never heard of anyone being denied the opportunity to be represented in a custody case, if they speak up.

[motherof1yearold]

I know mediation isn't an option this time, so I definitely will need to find  a lawyer .

[Matt]

If it takes a while to find one that you have confidence in, and to come up with the money, you can probably request a delay from the court.