Update on Custody Mod Case - Had court yesterday

[Before you can make things better, you have to stop making them worse...]

I thought about posting an update yesterday, but honestly just didn't have the emotional legs after the hearing.  I don't think there's anything bad to report, but there are a lot of good indications of things coming to a positive outcome soon.

Back story for those that aren't familiar - Feb. 2012 - uPDxw pulls S9 out of school to home school him.  He was getting in trouble behavior wise, but nothing significant.  No suspensions, fights, etc.  Mainly just being loud and disruptive at times, and not being willing to do his work, follow direction, etc.  He was in the Talented and Gifted classes making A's and B's, and he was also on an IEP for Asbergers and ADHD dx's.  I agreed to try it at the time.

Fast forward to now, uPDxw is now "unschooling" as she calls it.  Basically S9 does no formalized education program, just does a bunch of activities that are honestly fun extracurricular stuff, but he's not doing any basic math, reading, writing, etc.  uPDxw admits this and is vehemently defending it.  S9 is also not actually doing home school each day.  He's gone for as long as a month without doing any work on anything at all, by his mother's own admission.  S9 is falling behind dramatically.  His mother refuses to recognize a problem, defends the situation, continues to devalue/blame/split me black for all kinds of things, etc.

Back in February/March, I emailed S9 needed to go back in school.  Badly.  His mom refused (obviously).  So instead of carrying the argument on and having it devolve into more drama, I filed consulted with my L and filed a custody mod suit.  There were other options legally, but L recommended the custody mod so that is what we did.  Suit was filed in April. 

Up to now, there's been response to the suit, My L deposed uPDxw, discovery/interogatories, etc.  uPDxw's L also filed a Motion for Attorney's fees.  My state has a law that gives the judge latitude to award attorney's fees if one party doesn't have the money to pay for a L.  It's really intended for situations such as a man leaves his wife of 30 years and she had stayed home and not worked and can't otherwise pay for her own L.  It's not intended for a situation where one party has been out working and has just plain made a choice to be underemployed like uPDxw has.

Anyway, yesterday's hearing was just for the Attorney's fees motion, but the judge did also hear a little bit about the education issue, enough to set another hearing in about 3 weeks.  He made specific mention of wanting to hear it all himself, so the date was specific so a substitute wouldn't have to hear it.  He also, I believe is going to wait to rule on the attorney's fees motion until hearing the custody issues.

There was testimony about financial affidavits, picking of nits about various numbers by both sides, questioning of questionable things claimed, etc. 

After hearing the backstory of the case, he agreed there was urgent need for another hearing before school starts Aug. 5th.  He then talked to uPDxw a bit, and tried to convince her to just put S9 back in school.  He had heard absolutely no details, but he very clearly already had decided what he wanted.  He all but told her put S9 back in school or you lose custody. 

Part of me was happy for it, part of me was like "no don't say that!  Let me see this through so i can get custody and not have to deal with this crap anymore."  So, the judge sees the issue, but is trying to give uPDxw a chance. 

He also did say he may grant some financial relief, I'm not sure how that will fall out.  My own opinion is that when we divorced, uPDxw got to walk away from all the marital debt, responsiblity for the house, got a big check for me to help her get out on her own and on her feet.  I agreed to more than the law required and it left me in a position where i couldn't keep up with everything I really needed to, house maintenance suffered, and it contributed to circumstances that led to me short selling the house. I've also had to deal with a totally frivolous lawsuit from her, as well as constant harassment about anything she can drum up (which has admittedly dropped off because I've figured out better boundaries to limit her opportunities).  She's purposely underemployed, I'm supposed to be free from having to buffer the stupid crap she does, that was the point of the divorce.  At what point does she get to become responsible for herself, her own actions, and the consequences - good or bad?  I've paid enough for her bad choices and I don't want to pay anymore.

My L basically told me, that regardless of how the financial issues fallout, I've basically already won the meat of the case based on the judges reactions and what he told uPDxw.  So, I might end up with a bit more debt, but I'm overall in good shape, and it appears S9 is going to back to school one way or another.

[Waddams]

I thought about posting an update yesterday, but honestly just didn't have the emotional legs after the hearing.  I don't think there's anything bad to report, but there are a lot of good indications of things coming to a positive outcome soon.

Back story for those that aren't familiar - Feb. 2012 - uPDxw pulls S9 out of school to home school him.  He was getting in trouble behavior wise, but nothing significant.  No suspensions, fights, etc.  Mainly just being loud and disruptive at times, and not being willing to do his work, follow direction, etc.  He was in the Talented and Gifted classes making A's and B's, and he was also on an IEP for Asbergers and ADHD dx's.  I agreed to try it at the time.

Fast forward to now, uPDxw is now "unschooling" as she calls it.  Basically S9 does no formalized education program, just does a bunch of activities that are honestly fun extracurricular stuff, but he's not doing any basic math, reading, writing, etc.  uPDxw admits this and is vehemently defending it.  S9 is also not actually doing home school each day.  He's gone for as long as a month without doing any work on anything at all, by his mother's own admission.  S9 is falling behind dramatically.  His mother refuses to recognize a problem, defends the situation, continues to devalue/blame/split me black for all kinds of things, etc.

Back in February/March, I emailed S9 needed to go back in school.  Badly.  His mom refused (obviously).  So instead of carrying the argument on and having it devolve into more drama, I filed consulted with my L and filed a custody mod suit.  There were other options legally, but L recommended the custody mod so that is what we did.  Suit was filed in April. 

Up to now, there's been response to the suit, My L deposed uPDxw, discovery/interogatories, etc.  uPDxw's L also filed a Motion for Attorney's fees.  My state has a law that gives the judge latitude to award attorney's fees if one party doesn't have the money to pay for a L.  It's really intended for situations such as a man leaves his wife of 30 years and she had stayed home and not worked and can't otherwise pay for her own L.  It's not intended for a situation where one party has been out working and has just plain made a choice to be underemployed like uPDxw has.

Anyway, yesterday's hearing was just for the Attorney's fees motion, but the judge did also hear a little bit about the education issue, enough to set another hearing in about 3 weeks.  He made specific mention of wanting to hear it all himself, so the date was specific so a substitute wouldn't have to hear it.  He also, I believe is going to wait to rule on the attorney's fees motion until hearing the custody issues.

There was testimony about financial affidavits, picking of nits about various numbers by both sides, questioning of questionable things claimed, etc. 

After hearing the backstory of the case, he agreed there was urgent need for another hearing before school starts Aug. 5th.  He then talked to uPDxw a bit, and tried to convince her to just put S9 back in school.  He had heard absolutely no details, but he very clearly already had decided what he wanted.  He all but told her put S9 back in school or you lose custody. 

Part of me was happy for it, part of me was like "no don't say that!  Let me see this through so i can get custody and not have to deal with this crap anymore."  So, the judge sees the issue, but is trying to give uPDxw a chance. 

He also did say he may grant some financial relief, I'm not sure how that will fall out.  My own opinion is that when we divorced, uPDxw got to walk away from all the marital debt, responsiblity for the house, got a big check for me to help her get out on her own and on her feet.  I agreed to more than the law required and it left me in a position where i couldn't keep up with everything I really needed to, house maintenance suffered, and it contributed to circumstances that led to me short selling the house. I've also had to deal with a totally frivolous lawsuit from her, as well as constant harassment about anything she can drum up (which has admittedly dropped off because I've figured out better boundaries to limit her opportunities).  She's purposely underemployed, I'm supposed to be free from having to buffer the stupid crap she does, that was the point of the divorce.  At what point does she get to become responsible for herself, her own actions, and the consequences - good or bad?  I've paid enough for her bad choices and I don't want to pay anymore.

My L basically told me, that regardless of how the financial issues fallout, I've basically already won the meat of the case based on the judges reactions and what he told uPDxw.  So, I might end up with a bit more debt, but I'm overall in good shape, and it appears S9 is going to back to school one way or another.

[Matt]

So let's game-theory this a little... .

First, what will be your focus at the upcoming hearing - custody, school, and/or $?

What preparation will you and your attorney do?  What evidence will you submit in advance?  What will be your basic arguments, and what arguments do you expect the other side to put forward?

Then, let's assume you win on the school issue, and the judge says to your ex, "Put the child in school by August 5."  :)o you think she will comply?

If that is the outcome, will you drop the custody issue or continue to pursue it?

Or what if the judge takes a weaker approach, and suggests but doesn't require Ex to put your son in school.  Then is there a way to move strongly on the custody case, based on the need to address school and other very kid-centric issues?

Since the finanial issues are complicated, and not time-sensitive like the school issue, maybe you could ask that the focus for now be on school first and custody second, and let the financial issues play out over time.  After all, if your motion on custody is granted, that will impact the financial issues a lot.

[GaGrl]

If she puts your son back in school, I would think there would need to be some oversight on your part as to his attendance.  I wouldn't trust her to get him up and to school on time every day.

[Matt]

If she puts your son back in school, I would think there would need to be some oversight on your part as to his attendance.  I wouldn't trust her to get him up and to school on time every day.

And that will be a very good opportunity to establish strong relationships with his teacher(s), principle, school counselor, etc., so you will always get all the information about how he is doing.

[Waddams]

First, what will be your focus at the upcoming hearing - custody, school, and/or $?

A couple things - the judge said he'd rather do our next hearing as a final than a temp.  So he strongly urged all the parties to be ready for it, otherwise it'd be for temporary.  I expect uPDxw to drag her feet and for her side to not be ready for a permanent hearing.  Which will likely piss off the judge.  I hope for permanent and have some ideas on things to offer to make that happen even if the other side doesn't do their part to be ready.

First focus = school.  But based on the judge's discussion yesterday, I think I've already won that one.  He even said he'd rather see S9 in the school in my district instead of uPDxw's since there were issues that happened at uPDxw's.  I've got a rather large load of evidence to bring and describe the issue in more detail, but L went over all that in deposition so I think we'll end up just relying on the deposition transcript to save time.  uPDxw already admitted it all.  It shouldn't take too long to bang through it.

Next focus = Custody.  This is also tied to school.  It could happen sooner or later w/ the scenarios my L outlined after the hearing.  The judge might very well order a custody change.  Or he might order the school change, and see how things go.  If it goes that way, I'll make sure S9 does well on my time, track defficiencies in performance/attendance on uPDxw's time, etc.  Eventually what will happen is with school choice, I'll get custody eventually.  

I do feel that custody is very important to address to ensure S9's educational recovery/catching up.  uPDxw literally can't follow the court ordered schedule anymore.  Current circumstances in her life cause S9 to be constantly shuttled back and forth between my house, her house, friend's houses, etc.  It's every day.  uPDxw's lifestyle does allow for her to address this currently.  She's taking horticulture classes and due to her class schedule I end up with S9 on all my time, 1/2 her time, I end up picking up from all over the place, etc.  It's a very chaotic lifestyle for S9 and the stress shows.  In order for S9 to get his life settled, and get into a routine, he needs to be able to get up, go to school, come home to the same place, and get a consistent routine.  He just plain can't get that with his mom anymore.  Even when her classes are done, she does tree service work and is constantly doing estimates in evenings/weekends/etc.  She has no stability of routine in life, therefore she can't provide the same like I can for S9.

S9 is dx'd with Asbergers and ADHD.  Routine on a consistent basis is vital for those kids.  So I feel strongly I need to fight for custody as a contributing factor to addressing S9's educational needs.  I'll be able to fix educational issues easier and it is in S9's best interest to have the consistent routine that I can provide and his mother cannot, and will not be able to given her chosen lifestyle and career.

As for documentation, I've got text records that document 2 years of me having S9 for 70% of overnights, and constantly switching him back and forth between us.  It's just not good for him to continue like that.

I also intend to propose a very generous, and flexible visitation schedule between S9 and uPDxw.  I don't want to take him away from her.  I don't want to damage anything between them.  And due to her chaotic schedule I think her visitation schedule needs to make allowance for it.  Specify EOW, plus 1 or 2 additional days during the week, or every other week, maybe 1 day one week, 2 days, the next, etc.  I'm open to suggestions on the details of this one to be honest.  I intend to talk to my T about it as well and get some guidance.

Last Focus = Financial.  About the motion for attorney's fees and what I think about that above, so I won't repeat that here.  I can also say if they aren't ready that they've had the same time I have, and are purposely dragging it out to try to run me out of money so I can't continue to pursue the case.  To me, if they are doing things like that, that's more ammo to deny their motion outright.  I can also show a history of uPDxw doing just this in the past on prior cases.  All I can do is make my arguments and live with what the judge rules.  

I did not bring this suit for custody to try to get out of paying child support.  I brought this suit because uPDxw was never going to agree to the proper thing for S9 so I needed legal standing to do it over her objections.  After consulting with my T, my L, and other trusted friends/family/etc., I made a very hard choice to file suit.  After reviewing the circumstances with L, L recommended how and what to file, so I went with it.  I find this entire thing to be rather distasteful, wasteful, and to be honest, just plain stupid.  Who else has to file a lawsuit to get their kid into school?  It's such a simple case in big picture.  At the same time, I found yesterday's hearing to be very stressful, even though it went well.  I hate going through this crap and wouldn't go through it unless I felt it were absolutely necessary.

I suspect uPDxw's obstruction and delay will be mainly over her financial records.  I don't think there is much point to getting all her records.  I'm going to propose imputing her income at minimum wage, full time.  Or if the judge is not comfortable with that, as low as he wants.   I'll tell the judge I'll agree to whatever deviations from standard guidelines the judge might consider, etc., that  I don't want to hurt uPDxw financially, that I think she should be fully responsible and accountable for herself, but I don't want her hit with extra burdens and I'm fine with whatever arrangements are made to make any child support or other financial commitment on her part minimal, or even none.  

[Matt]

So it sounds like your strategy is to present yourself as the problem-solver, and to put forward a schedule which will work - will provide S9 with a steady routine, and will also allow him to spend a good amount of time with his mom, on a pretty regular schedule.

I think the judge will appreciate the value of a predictable, routine schedule to a nine-year-old.  (My kids now have more variety in their schedules, and that's fine, because they are 16 and 17.  But at 9, and after dealing with a lot of chaos up til now, a regular schedule will be very good for your son.)

I think the judge will also appreciate that you are doing the work and applying good judgment to figure out a sensible solution, and not looking to win at your ex's expense.  You will be seen as wise and moderate, and that will help you with every other issue in the future.

By focusing on the plan, you will be selling yourself more effectively than if you touted your personal characteristics explicitly.

[Waddams]

So it sounds like your strategy is to present yourself as the problem-solver, and to put forward a schedule which will work - will provide S9 with a steady routine, and will also allow him to spend a good amount of time with his mom, on a pretty regular schedule.

Yeah but I've also got to clearly delineate the problem that forms the material change in circumstances, and show it's due to uPDxw's bad decisions.  And show her to be at least unreasonable.  Hopefully irrational.  Then make the point you can't reason with irrational.  So there really isn't a way to solve the problem outside of a court order.  I want to gently nudge the judge to bolder action.

I think the judge will appreciate the value of a predictable, routine schedule to a nine-year-old.  (My kids now have more variety in their schedules, and that's fine, because they are 16 and 17.  But at 9, and after dealing with a lot of chaos up til now, a regular schedule will be very good for your son.)

The judge has already acknowledged that.

I think the judge will also appreciate that you are doing the work and applying good judgment to figure out a sensible solution, and not looking to win at your ex's expense.  You will be seen as wise and moderate, and that will help you with every other issue in the future.

I'd go further and say I can show I've tried to negotiate other sensible solutions before turning to court as well.  uPDxw is the one that is just plain wrong and I have no other recourse for solving an issue that I believe is placing S9's entire future at risk.

By focusing on the plan, you will be selling yourself more effectively than if you touted your personal characteristics explicitly.

Yeah, focus on behavior and actions and not aspects of personalities or how good or bad someone is.

I forgot to mention above, I'm also going to bring copies of SO's kids' report cards, and all the various academic awards they received over the past year.  And their IEP's.  I can show 4 kids with various special needs that are thriving (mostly straight A's and all kinds of high achievement awards in the last year for each of SO's kids).  I think it demonstrates the kind of environment regarding school that exists in our home.  And I can make the statement that it kills me that I can't immerse S9 in it as well because after he adjusts I think he'd do extremely well.

[ForeverDad]

It's quite possible that the judge will want to do the minimum of changes.  So if ex agrees to enroll him in school then the judge may want to turn to you and proclaim, "Well, I fixed your problem!  Son will go to school and nothing else needs to be done!"

So you need to make a case that son being enrolled back in school and little else done is not a 'fix", issues WILL continue, you WILL be back in court again over other issues if you as the stable and responsible parent aren't placed in charge, or if the judge doesn't want to change joint custody then at least with decision-making or tie-breaker status.

Get as much fixed while in court.  Otherwise you'll be back there that much sooner.

I should know, I have had nothing said wrong about me, ever, and my ex just got called out for disparaging me in son's presence.  I already had already gotten custody in 2011 but was back seeking majority time and I got it but only during school year.  So when we started out - CPS stepped up and stated they had "no concerns" about me - our temp order was for me to have alternate weekends and an evening in between, about 22%.  Eight years later - with mother looking bad - she was reduced to 25% time during the school year and kept 50% during the summer.  Fair?  That concept is ignored in family court.  They are firm believers in baby steps, your additional costs are not a concern to the professionals, for them it's just another day at work.  Eight years and my ex still has a better order than I had when we first appeared in family court.  Ugh!

I like the idea that they already want son in your school district, school will probably require that you be assigned as Residential Parent for School Purposes.  Make sure you get that declaration in the court's order.  It may not seem like much, the lawyers may even protest that it doesn't mean anything, but it gives you a slight edge if nothing else.

[whirlpoollife]

A friend of mine has a child with asbergers. The child is in high school now. Friend lives with exwife. Exwife does nothing including nothing when it comes to homework for that child. That child was failing every subject.  Bright child but without homework completed there went the grades. So now friend comes from work and helps his kid focus with homework. Fight to get sole decision making when it comes to the school issues for S9!

X2bh has three weekends a months. I have the fifth. They are long weekends but I gave in to an extra overnight to eliminate the during the week evening visits.  The evening visits were interrupting.  No matter what schedule, the kids grades dropped because , to be expected , h is  not one for school.   So maybe for your son, he can start his weekend with mom on a Thursday night to Sunday night or Monday after school . That way you have him on the days when there is homework.

[ForeverDad]

I would not be surprised if, once son is back in school and you have increased meaningful parenting, that his diagnosed symptoms recede int to past.  My son seemed a bit autistic as a toddler since I recall mentioning that observation to the pediatrician that he wouldn't look me in the eye, from K to the first half of grade 3 he seemed ADHD being distracted and distracting others in class, teachers all said bright but always the last to finish schoolwork, etc.  In the middle of 3rd grade when he turned 9 years old, just before or about the time I got custody (but parenting time stayed equal) it was almost like he hit a stage of development and mostly snapped out of it.  When he got a psych eval a few months later they said he was normal!

Let's keep the options open regarding the future, his behavior patterns may be at least partly caused or triggered by external influence from his environment/parenting.  If you improve his parenting environment then who knows how much he'll improve... .

[david]

My xBPDw insisted our 4.5 had a leaning disabilty. She wanted him tested but he was too young. The next year , at her constant insistence, they tested him at the soonest possible age. The results were inconclusive but they appeased ex. I kept fighting for him but no one would listen. A year later, after he was given an IEP, his teacher talked to me about him saying she didn't see anything that indicated he had a learning disability. That was the beginning of the school starting to hear what I had to say. I kept trying to get more time from ex. She gave me extra time but it was not consistent. He did improve in school and several people at the school started talking just to me. We worked together and things improved. The basic plan was that we would discuss things abotu son and then the school would contact ex with their recommendation. As long as it didn't come from me she agreed.

I went to court in 2010 and got more time in our court order. That was amajor help for our youngest.

I am now finishing up a custody eval and should be getting more time again. The ex continues blaming both boys and pushing them further away. Also, they are getting older and more aware of ex's behavioral issues. The eval included both boys seeing the evaluator alone and their ages helped a lot. They are 15 and 11 now and they can express themselves much better. 

I agree that some of the behavioral issues of our two boys was attributable to  a) the separation and divorce which I expected and more so  b) from ex's own behavioral issues that affected her parenting "style" ( she has no consistent style ). Parallel parenting and letting our boys see the two different styles really helped. The confide in me and trust my guidance. They do not trust ex about anything.

I have two years of evidence (homework,etc) that show that the boys do over 90% of all school work when with me. The evaluator supported my evidence and my atty has it all if we wind up in court. My atty thinks ex will settle. He actually believes her atty will convince ex to settle since everything points to her not looking good in court.

One thing I have learned about court: Judges should, and from my experience do, make their rulings based on the evidence presented in court. If it is not presented as evidence it can be disregarded. Make sure all your evidence is presented even if your atty thinks you already "won". Make it so overwhelming the court has no other choice but to rule in your favor.

[Nope]

One thing I have learned about court: Judges should, and from my experience do, make their rulings based on the evidence presented in court. If it is not presented as evidence it can be disregarded. Make sure all your evidence is presented even if your atty thinks you already "won". Make it so overwhelming the court has no other choice but to rule in your favor.

That is really important advice. You, as the father, literally need to give the court no other choice by presenting as much hard evidence as you possibly can. The court needs to understand that this school issue is a symptom of a much larger problem with your ex's parenting. Simply put, she makes poor parenting decisions and can not be trusted to be responsible. It sounds to me that the judge basically already told you that all she has to do to make this go away is to put him back in school. So by the end of the actual hearing this judge needs to be convinced that if she did this, that still wouldn't solve the real underlying problem.

Yes, put the school issue front and center. Be prepared to provide any evidence that supports your position that he is falling behind academically. But also prepare as much information as you can on what his life and routine are generally like when he is with his mom. Are there other things she should be doing for him that she isn't? Bring any solid evidence that you can so that the judge is forced to recognize that she simply should not be a full time parent because is just doesn't fit in with her priorities. You are simply offering yourself as a solution.

[Matt]

Yeah, I think David and Nope are right on target.

One other perspective - just brainstorming... .

In conflicts, pretty often we continue to focus on the issues that we've been focusing on.  We go around and around on one or two issues, determined to win.  And in something as important as this, I wouldn't suggest that you let any important issues go, especially if you can bring strong evidence.

But reading about cases here, fairly often courts make decisions based at least partly on issues that one or both parties overlooked.  For example, one parent lives in a better school district than the other, or one parent travels for work, or one parent always takes the child to the doctor.  Something that we aren't thinking about but that the judge decides is important.

This creates an opportunity for you to make your case even stronger, but bringing in issues that the court may give weight to, but which haven't been the focus for either parent yet.  One way to do that is to find the criteria that your state tells judges to consider;  or if your state doesn't publish those online, and your attorney doesn't know of any, you might find the ones used by Minnesota, which are also used by some other states.  I think there are nine criteria, if I remember right.

You can go through the criteria, and think of ways to make the case for yourself regarding each of them, and put some evidence into the case accordingly, so if one of those is considered important by the judge, your case will be strengthened.  It will also show you seeing things from several points of view, and not just a black-and-white focus on the issues have divided you most.