Court... here we go... (deep breath)...

[DoxieLover]

Here we go... .

This is my first real post but in an effort to try to keep it from being a 500 page novel, Here's a bulleted list of the high points leading up to the present... .

-  I have a D12 from a previous relationship, a SD10, and a SD8.

-  My DH's exW is diagnosed BiPD 2 although we think she also has BPD.

-  My DH's exW has attempted suicide twice with the most recent attempt being a few years ago.

-  At the time of the suicide, we agreed to a temporary agreement giving her the kids 4 days a month and requiring her to be supervised by a family member during these visits.

-  Since then, she stopped being supervised and we have gradually allowed her to have the kids up to half the time.  We have allowed this for several reasons:

         1 - It has kept her from taking us back to court (until now).

         2 - It has minimized conflict between her and my DH, which we think is better for the kids.

         3 - Ultimately, she is their mother and we know courts want both parents to be involved in their kids lives.  So, we hope that this shows that we have been reasonable in spite of her challenges.

So where are we now... . ?  Well, she has decided she wants to make the 50/50 arrangement permanent.  (The 4 day temporary agreement is what is still legally binding.). So she has sued us.  Her filing says that she no longer has the mental health problems that caused her suicide attempts. We have reason to believe that DH exW hasn't been going to therapy regularly or getting her prescriptions refilled.  She has always disagreed with the BiPD diagnosis.  While we are open to making the 50/50 agreement permanent, we are 98% positive that she is really doing this so that she can try to get us to pay child support.  (She hasn't worked in several years and her husband makes enough $$ that she really doesn't have to work.). Additionally, she has been telling my SD10 for the last few years that when she turns 12, SD10 can choose which parent she wants to live with. SD10 will do anything to try to make her mom happy, so she probably would say she wants to live with her mom when she turns 12.  So we think her ultimate plan is to get child support and take the kids away from us.  That of course, makes us not want to give her anything.

We have a court date set for end of Feb.  Do any of you have any advice for us?  Have we hurt our case by allowing her to have the kids up to half the time or does that make us look reasonable?  How much would 2 suicide attempts factor into a custody decision?  Finally, how much information, if any, should we share with my D12, SD10, and SD8 when all of this court "stuff" starts happening?  I know she will tell SD10 all kinds of lies about us and the situation. And I'm sure my D12 will ask questions about what's going on.   So... . that's where we are... .

[DreamGirl]

The 50/50 visitation has been in practice for how long? More then 6 months?

What problems are you seeing by making the verbal agreement, an agreement in writing?

Would child support be ordered with the 50/50 agreement? Is it a significant amount?

[ForeverDad]

"up to half the time" -- Did you put any comments or communications in writing about 50%?  Does she or could she have proof it was 50%, as DreamGirl asked, for an extended period?  Could it actually have been a little less than 50%?

Until you know a little more where your legal stance ought to be, no more comments to her describing the current situation as 50%.

What you could to is stand firm on something in between 50% and that 4 days per month.  I'm thinking you could make a solid case for 3 or 4 day weekends - pickups/dropoffs at school may minimize contact - and an overnight in between.  That's a pretty much standard order - theoretically it ought to be legally hard for her to criticize it.  However, as Matt would emphasize, beware of (1) her endlessly nibbling away at your offers or (2) that you counter your own offers.

We have reason to believe that DH exW hasn't been going to therapy regularly or getting her prescriptions refilled.  She has always disagreed with the BiPD diagnosis.

This is an important issue to raise.  Phrase it that you do have concerns that she hasn't really dealt with her issues, not if she's denying them.  Also, just because you don't know of a more recent suicide attempt, threat or some other episode affecting parenting ability, it doesn't mean there weren't any.

[DoxieLover]

Thank you both for replying. I've seen a lot of posts from both of you so I really value your input and experience.

DG - To answer your questions, there is no legal written agreement giving her 50/50.  Legally she is still only allowed 4 days a month.  However, we have been letting her have the kids 50% of the time because we are nice (or dumb).    My DH's child support obligation ended as part of the order for her to only have the girls 4 days a month.  He makes good money so yes if we had to pay it again, it would be significant.  Plus, she chooses not to work. So we really don't like the idea of having to pay her child support while she stays at home.  We would be okay making a legal agreement in writing giving her half the time as long as we have custody and do not pay child support. The problem is that she will NEVER be happy with that and will sue us again.  (She sued us a year after she and my DH got divorced and tried to limit him to 8 days a month.  She has also been telling my SD10 that SD10 can choose which parent she wants to live with when she's 12.)

FD - I think there may be a document that ExW wrote outlining a 50/50 plan but there isn't anything legally binding or court ordered.  As for being able to prove she's had the kids half he time, my husband's job has a varied schedule.  So each month, he gives her a list of the days she gets for the month.  We've gotten it down to a specific pattern over the years. So yes, unfortunately, I guess she could prove she's had them 50% by providing copies of those docs.  Our thought is to make the argument that we need to retain the ability to limit her visitation if/when she is unstable.  She doesn't have a job and if she and her husband get divorced or have issues, she could become suicidal again or take the kids and move out of state or who knows what else.  Also, she and her husband filed a court case last year ago after calling the cops on each other saying that each other is abusive. However, they didn't pursue the case and it has since been closed.  We are hoping we can use this in our case as well.  The kids tell us they fight frequently but of course, we have no proof since this happens at their house behind closed doors.

All of this said, we are planning to propose that she get some version of standard possession and that she provide the proof that she has been "cured" as she claims she is.  We will also raise the point that she's attempted suicide twice in her life that we know of. So that alone should show this is a lifelong illness which needs lifelong treatment.  So we are hoping to also request that she be required to stay in therapy and provide updates to the court on her compliance every 3 months, 6months, etc. Is this unrealistic or unreasonable for us to request this given the two suicides and having kids involved?

There's a LOT more I could say but I'll leave it at this for now and see what you guys think.

[ForeverDad]

My court loves Baby Steps, at least for me as a dad.

• Our separation was marked by my ex's arrest for threatening my life - found not guilty almost 5 months later because the judge decided they weren't "imminent" threats per case law.  So when family court pondered temp custody during our mutual temporary protection orders (TPO) the judge decided based on work schedules.  I worked a regular schedule, was not of the unstated female gender and so despite my protection order she got temp custody for the next two years.  Our preschooler was not covered by any protection order.



• My ex always got minimal consequences and progress felt like a series of baby steps.  When I managed to secure custody over five years after we separated - our child's lawyer (GAL - Guardian ad Litem) refused to consider also advocating majority time for me, the GAL felt mother getting child support would make her more stable.  It has been remarked here... . The parent behaving poorly seldom gets consequences and the parent behaving well seldom gets credit.



• Late 2005 to early 2008 - separation & divorce process - mother had temp custody and majority time.
  
  Early 2008 to early 2011 - Settlement - Shared Parenting and equal time.
  
  Early 2011 to now - Settlement brokered by GAL - I have temporary custody but equal time not changed.
  
  Over a month ago we spent two entire days in family court for my supposedly simple Motion to Modify Parenting Time.  A decision is taking 17 months.  (By comparison the divorce trial was scheduled for just one day and the last minute settlement only took about 3-4 hours.)

So maybe your husband can convince the court that a drastic legal change is not advisable.  "With an abundance of caution Father is willing to move the official schedule up to alternate weekends and an overnight in between.  Father believes the past history shows him as the consistently more stable and more responsible parent.  On the other hand, in addition to the incidents where mother's parenting was limited to 4 days per month, there have since been other incidents at Mother's home which ought to make the court take caution and move slowly on granting mother significantly more time.  As an example, on {dates} Mother and her husband filed a court case {#} last year after calling the cops on each other saying that each other is abusive.  Father believes this is a continuation of an old pattern of instability or worse.  Etc."

We would be okay making a legal agreement in writing giving her half the time as long as we have custody and do not pay child support. The problem is that she will NEVER be happy with that and will sue us again.

That wouldn't work in my state.  My lawyer told me that we could make a settlement where ex agreed not to request child support, even have it put it into a court order and then the next day she could go to the Child Support Enforcement Agency (CSEA) and open up a case requesting child support.  Apparently it's a right that effectively can't be easily signed away.

Three years ago I got sole legal custody and the GAL wanted parenting time to remain equal expecting mother to seek child support and hopefully be more stable.  Yes, she did get child support.  No, she was not more stable.  So I'm inclined to suggest that you don't 'settle' with equal time.  You may be ordered to have equal time at a hearing or trial.  For that matter, an inexperienced or biased judge could reverse matters and give her custody, though that is unlikely.  Sadly, no guarantees in court which is why, besides the lengthy delays, so many cases end up settling, though usually just before a big court event "on the court house steps."

When calculating child support, does your state figure in the income of the other spouse, the stepfather?  Ex's husband works, so would that make the income not so lopsided?

I do think allowing equal time in the recent past puts you at a bit of a disadvantage but you can always state your position that while she is more stable you've been more flexible with allowing her more time.  (But being nice and thoughtful doesn't matter to most judges... . The parent behaving poorly seldom gets consequences and the parent behaving properly seldom gets credit.)  Did you pull back off the kids' time with ex when they had that police/court incident last year?  If so, then that would be an example of being flexible but still being assured the children are relatively safe and kept away from ex's disputes and incidents while simultaneously documenting that ex doesn't have a stable home as you do.

You may not be able to avoid equal time eventually, but you can sure try to slow it down and make a case for the court to give her additional parenting time cautiously over time.

[DoxieLover]

I've read a lot of your posts over the last 2-3 years and God bless you for all you've had to go through.  It's so unfortunate that the process is slow when you are the "good" parent.  I'm so happy for you that you are slowly but surely getting your kids in a safe and healthy place.  For us, since the suicide and temp orders, it's been good that things are slow.  We have learned that if we make things take a long time and make it hard for her, she will give up.  That's how we've been able to avoid court for the last few years.  We think she's been more persistent this time and actually following through with court because SD10 is getting to the age of being able to "choose" which parent to live with.

Yes in our state, technically one parent HAS to pay child support.  The only reason we've been able to get away without paying her or her paying us over the last few years is because it was written into the temp order that gave her only 4 days a month that my DH no longer had to pay child support.  Since neither of us have gone back to court (until now) for permanent orders, the cessation of child support for DH has been what we've been doing.  Perhaps we could have taken her to court to get her to pay us CS and to have a "permanent" custody/visitation situation, but our philosophy was that we'd rather not get any $$ from her then go to court and risk them giving her custody back and making us pay CS again.

Our state does not count the spouse's (ie - step-parent's) income when factoring child support which for us, is good because I work. Therefore, my DH's income and mine combined are more than her husband's.  We do plan to make the argument that she is voluntarily underemployed if push comes to shove and we need to.

I agree though that we shouldn't give in to giving her 50/50 because as you know, this will never be over. Sigh... .

I have asked my DH to find out how we can have exchanges via 3rd party as I do not want to see her to exchange the kids with her during the summer if my husband is at work because it will not be fun.  She has raged at me and accused me of trying to steal the kids before and I have a weak stomach for it.  Do you have any suggestions on this front?  Also, she comes to the kids non-school activities on our days and we never know if it's going to be a good day or if she's going to be in a bad mood.   So it's not fun and impacts our ability to bond with the kids.  Is there anything we can do about that?

[Free One]

Her filing says that she no longer has the mental health problems that caused her suicide attempts. We have reason to believe that DH exW hasn't been going to therapy regularly or getting her prescriptions refilled.  She has always disagreed with the BiPD diagnosis. 

I know very little about BiPD, but what I do recall is that it is common for them to think nothing is wrong with them and refuse meds? Maybe this is more evidence she is off her meds.

I think the fact that there is an actual diagnosis will help you. She will probably have to prove that there has been a significant change in circumstance to allow a modification of custody. It seems it would be difficult for her to prove she is cured.

I wonder if your defense can be something like, "Yes, we allowed kids more time when we knew she was stable... . but still held full custody so that we could do what was best for the kids if we saw unstable behaviors."