Figuring out how to handle this from others experience

[david]

I filed for a custody modification over a year ago, July 2013. Ex has dragged things out. I filed because ex doesn't help kids with their school work. I am seeking more time with them during the school year. I have proof of it all and it is rock solid. I have two complete school years of evidence. Ex will not contest any of it because it is so rock solid. We had a custody eval and she blamed the kids. I showed only a limited amount of evidence at the eval. The eval was 16 pages long and favored more time with their dad during the school year. At minimum it recommended 50/50 during the school year. The eval had nothing negative in it about me. The hearing is set for this September. AT minimum the entire year will be split 50/50.

The problem, ex's atty got a new job. She is now working at my atty's firm. This creates a conflict of interest so she can no longer represent ex. Her atty actually withdrew in February of this year because of that. Ex is fully aware. Ex , however, has no atty at this time. I suspect she will show up in Sept and claim she needs to find an atty or she will have an atty which ex retained days before. Either situation will drag this on further.

School starts the week before the hearing and I do not want this to drag out another school year. It is not in the best interest of the children and ex really doesn't care about that.

I emailed my atty the other day about this and basically said I wanted a solution so this doesn't drag on. I've had conversations with him before about this so he knows my position. I haven't heard back from him but I suspect that is because it is a weekend.

From others knowledge/experience is it reasonable for the courts to issue a temp order granting 50/50 until the hearing ? That is my first thought. My second thought is since it is obvious ex is dragging this out can it be made a permanent order in September even though ex hasn't brought an atty with her ? My email to my atty asked the same questions. I want to be prepared when he contacts me. Any other ideas would be appreciated.

I also emailed ex several days ago asking her is she would agree to 50/50 during the school year. She has not replied. I doubt she will. Our court order requires replies within 24 hours if it pertains to the kids.

[Matt]

Call your attorney's office first thing Monday morning and schedule a short meeting with him, as soon as possible.  Don't take no for an answer - insist on a meeting.

When you see him, express your thoughts just as you have here, and ask for options.  Again, don't allow yourself to be put off - make your concern clear and don't stand up until you believe you have recieved a good answer - what options you have.

Decide which approach you believe is best, and give your attorney clear instructions as to what you want him to do, and by when.  Then follow up - if he's supposed to file something by the end of the week, call on Friday to find out if he filed it.  Don't assume he will do what he said, and don't accept it if he doesn't - insist that he get it done in a timely way.

The squeaky wheel gets the grease.

[livednlearned]

When exactly did your ex learn about the September hearing date? Has it been a year since her L got a new job and had to withdraw? Is there a way to make her inaction a main focus of the upcoming hearing? For example, summarizing the number of instances she has used delay tactics to protract things, and then linking that to her current delay.

I agree with Matt that you should insist on getting answers from your L, but I also think Ls will sometimes perform for us in court, all the while knowing that the judge cannot do x,y, or z. There's so much theater that goes on  

Even so, be sure to ask your L what you asked us -- about whether the judge can grant temporary 50/50 while your ex retains an L. If he's going to do it, make sure you know how he is going to phrase it. Meaning, don't just ask if it's possible, ask your L the best way to phrase it so that the judge feels like it's a reasonable solution. "My client has had a custody evaluation that was very favorable, in which the boys would spend the school week with him so he can get them on a good homework schedule. He's a teacher, and he understands how important homework is to their ability to perform at grade level. We respectfully ask that the boys start spending the week with him as a temporary measure until the next hearing. When opposing party retains counsel and schedules our next hearing, my client can report back on how the boys are doing under this temporary measure. We trust that opposing party will work swiftly to obtain an L so we can have this matter resolved promptly and with as little disruption to the boys' schedule as possible." Something like that. I think a lot depends on whether the judge will have the custody eval in his files, and whether he can make a temporary decision based on what he sees.

Twice, the judge has granted me an adjusted temporary visitation schedule pending a hearing, although my situation, and our BPD exes, are quite different, so it's hard to say. I know judges can do it where I live, but I also know that judges are carefully following a rulebook that we aren't always aware of. The judge may understand that your ex is delaying, but knows that she has the right to representation, for example.

[GaGrl]

If the evaluation was so favorable to you, David, why don't you go for a temp order to your favor and ask for the temp order for weekday residential custody? The judge might then back off to 50-50 but at least you stated the urgency of the situation.

[david]

I will be calling my atty on Monday.

When the eval was done I went to my atty's office to discuss it. That was late June or early July. He indicated then that the judge received a copy of the eval so that was a big plus in my atty's mind.

Ex received papers for the hearing date in July. Her atty withdrew in February of this year so it is 7 or 8 months that ex hasn't had an atty.

I am sure ex read the eval. Her behaviors changed and I attribute it to her reading the eval. The phone at ex's residence disappeared in April of this year. I normally talk to the boys 3 or 4 times a week when they are with her. The phone appeared again in late June or early July. I have phone records of calls before, during, and after that time. I didn't make an issue because that would have been useless back in April and I figured I'd have a paper trail opf phone records.

She has sent a few emails since that time that were pleasant. That hasn't happened in years. She even addressed me by my name.

My atty has been straight with me and that is one of the reasons I am using him. I sent him an email but it was at the end of last week.

I am thinking of sending ex an email pointing out that I filed last July, her atty withdrew in February, and the hearing is set for September and she has no atty on record as of this date. I will then also ask if we can agree to one additional day a week overnight so I can help them with their schoolwork. I am not sure if that would be helpful in court or not. That is another question I have for my atty.

[Matt]

Just brainstorming here... .every situation is different so it's hard to say what's right for you... .

First, I think Gagirl makes a very good point.  You've been super-patient but maybe now is the time to go for it.  Ask for primary custody - point to the evaluation and say, "I am able to provide the kids everything they need, and their mom is not.  So it will be best for them to spend most of their time with me, and 24 hours every weekend with their mom" (or whatever schedule you think will be best).

If you ask for 90% maybe you'll get 80% or 70% or 50%.  If you ask for 50% a "compromise" might be 25%.

Also, have you thought about giving the kids phones?  I did that when we separated - my kids were 8 and 10 then and had never had their own phones - and that helped quite a bit.  They could call me any time, for any reason - I would not have accepted it if their mom had kept them from doing that - and if I didn't hear from them for a day or two I could call them too.  It wasn't too expensive and didn't involve their mom at all, and the court wasn't involved, but if she had tried to keep them from calling me I would have gone back to court the next day.

One more thought:  Maybe when you talk with your lawyer, you can tell him, "No more delays!".  Sometimes attorneys seem to be in the habit of delaying things for no good reason;  one attorney will propose a delay and the other will agree out of professional courtesy or whatever.  Maybe you could tell your attorney to strongly oppose any proposed delay for any reason, on the grounds that the kids are with the less capable parent, and it is hurting them - academically at least, and probably emotionally too - so there is no reason not to fix that right now.  Put him on notice that he is not to agree to any delays without your approval.  (But if the judge wants to delay things there might not be much he can do.)

[whirlpoollife]

If you ask for 90% maybe you'll get 80% or 70% or 50%.  If you ask for 50% a "compromise" might be 25%.

Also, have you thought about giving the kids phones? 

In the very start of divorce, x2bh wanted full custody , I am lucky that it didn't go 50/50. But for you to get that time, go for more.

For me the weekday visits ,of each child individually, visiting their dad was a pain because he never showed up on time , wanted make up time instead, and for me alot of contact with him and no homework was ever done while they had that visit.  So I gave up three nights to avoid the weekday visits.   The schedule now is h has kids three weekends a month starting Thursday night at 10pm to Monday night at 8 pm .  I have the second and fifth weekends which happen about every three months. ( holidays , alternating years) . It works except , Monday night they come back to me , to start homework, even though they are old enough that they should do it on their own.

Maybe try a trac phone to start. There is one co that has a no contract plan for 30/mo.

My h is on the phone constantly with kids when they are with me, court ordered to times and amount of time. I have to enforce it. So  with that said, you are allowed to talk to your kids every day they are at their mother's.

[Matt]

One thing I've noticed here is that we dads often start out, when the marriage has ended but custody isn't decided, with a very weak view.

I actually agreed in writing to take the kids just every-other-weekend.  This made no sense at all;  I lived just two blocks from their mom, and saw them almost every day, and had them all weekend every weekend plus quite a bit during the week - maybe 30 or 40% of the time.  And I was able to meet all their needs, and I knew their mom had some serious issues (she was later diagnosed with BPD and some other stuff).

So why on earth did I agree to just EOW?  And why do so many other dads take very weak positions, when we should probably be going for 90% of the time?

I was stunned by the whole thing, and depressed, and confused, and not thinking clearly.  And the "system" tends to assume that moms are better able to care for the kids than dads are, which isn't true in many cases.  Friends and relatives may assume they should be with their mom.  It's all like a freight train going in the wrong direction.

At some point, we have to stop that momentum, and put our brains in gear, and recognize if we are able to meet all the kids' needs, and if their mom is.  And if the answer is, it's in the kids' interests to be with Dad most of the time, then Dad needs to say so, loud and clear:  "I want primary custody, and I can meet all the kids' needs, and there are good reasons to doubt that their mom can."  If Dad doesn't say that, the momentum may stay in Mom's direction.

[catnap]

If the evaluation was so favorable to you, David, why don't you go for a temp order to your favor and ask for the temp order for weekday residential custody? The judge might then back off to 50-50 but at least you stated the urgency of the situation.

Mom blames kid's for poor school work.  Mom doesn't engage another L even though she has had more than one half a year to do so.  Mom tends to put off things then blames others is the message the Judge should be getting.  You can meet all of the kid's needs and she can see them EOW and longer in the summer.  I am sure some of the niceness is to avoid losing her CS.  Mom is obviously not putting her kid's needs first. 

[bravhart1]

David,

Don't know what country or state you are in but in CA it has been described as this by our first atty: "Mother can be a monster and kids will most likely stay with her, Dad has to be perfect all the time to get visitation". DH bought into it and first mediation gave him  about 20% visitation.

Well that didn't sit well with us, and we quickly got another atty, who said BPDm was not good for SD5 and we went from 20% to 50% in the first three months with new atty.

six months later BPDm filed for her time back, and judge sent us to mediation again and DH took a different approach, one of the more stable, mature parent instead of the dad hoping for a crumb like the first time around. Mediator agreed with DH and gave us 65%, with a strong admonishment for mom to "learn to share".

six months later BPDm once again tried to get her time back, every time asking for 100% custody and visits to Dad as she saw fit.  Mediator recommended 85% to us mostly because she  took a  very laiz a faire attitude about school,  in court she tried to delay by asking for a custody eval. she thought she would be able to delay the shift in time share for at least six months dragging out an evaluation. Judge didn't fall for it, we have full charge of school stuff.

Why SHOUDN'T you have at LEAST 50%? She has no more right to your children than you have.

So ask for what you truly believe is the right thing for your children David, nothing rings more true than the truth.  You aren't trying to eliminate her, you aren't trying to "win the kids over to your side", you simply want what's best for the kids. That will speak volumes in court and don't take a back seat on this for anyone, those kids need you now and they are growing up so fast.

As far as her atty problems... .I can't see a judge taking "I don't have an atty after six months of looking and two months of knowing this court date is coming up, so I need a continuance". She put this off, her problem.

Not your problem, be clear with your atty that unless the judge is feeling exceptionally generous for some reason and won't allow you to object, then your stance is that her poor planning should not delay the children's future or cost you additional dollars for coming back again, after waiting  so long for THIS hearing. 

Best of luck and stay strong!

[Nope]

It'll be interesting to see how this goes for you. In my case the BPD mom got every single continuance she asked for. She is now on L number for. She kept losing or firing L's right before court dates. Every time, continuance granted. At one point she told DH over the phone that she had a new L and then that L just didn't go on record as taking her on as a client UNTIL the week of court. Continuance granted. Then the court date was set for a month later. Her L suddenly needed surgery. Continuance granted.

I agree with fighting for a temporary order in the meantime. At the very least it wouldn't have any negative impact on the children to do so. You should also bring up how long she's had to get an L. The judge should be aware of that. But the court won't move forward on a full hearing when she can appeal the decision based on not having adequate representation.

[david]

I live in Pa and the court is in a county recognized as one of the worst in the state for fathers and custody. Back in 2007 I had three stepsons (her kids from her first marriage) all testify that I would be the better parent. The judge did comment on that and found it confusing. Ex was still given primary custody because and I qoute, "I believe mothers are better at raising small children than fathers are." That is the environment I have to work in.

The only issue ex brought up in the custody eval was that if I got more time she would have to pay me child support and I think that is the only thing driving her at this time.

My atty laid it out like this. If I want primary custody it would cost another 6 to 8 grand and no guarantee. I can't do that at this time. Seeking 50/50 was more plausable since we are close to that now. In addition I am having my atty get ex's work records showing she works on many of her custody days. I plan on taking care of that in court and changing our ROFR back to the original order. We had a parent coordinator that basically eliminated ROFR. Last year the state supreme court ruled that pc's can not change custody orders and only a judge can do that. Technically, at this point, our original ROFR is in force but I want to take care of that once the actual custody time is established in court. If it works the way I planned the boys will be with their mom every Wed and EOW during school. The order will be 50/50.

My concern is that ex will continue to drag this out and I want it resolved for this school year.

[AlonelyOne]

And why do so many other dads take very weak positions, when we should probably be going for 90% of the time?

I think for many of us, it is because our wives are the ones who initiated the departure. Often after having planned for months or years.  They've prepared, they've often got a larger social circle, etc. And if they do not work full time, they've got more time on their hands.

We suddenly find ourselves faced with a daunting confrontation. Little preparation for it.  Resources and finances gone.  We're on the defensive... .

Lastly, because women can get away with crap us men cannot!  My wife in one confrontation where I was simply refusing to discuss with her, forcibly grabbed my shoulder four times. Were the situation reversed, she could of easily called the police and claimed assault. The difference in tones/key of a male's voice versus a female's voice - males are usually deeper. So it is far more easy to be accused of yelling, even if there is no anger in our voices.

[AlonelyOne]

I live in Pa and the court is in a county recognized as one of the worst in the state for fathers and custody. Back in 2007 I had three stepsons (her kids from her first marriage) all testify that I would be the better parent. The judge did comment on that and found it confusing. Ex was still given primary custody because and I qoute, "I believe mothers are better at raising small children than fathers are." That is the environment I have to work in.

Ironically, I think in 2011 the Commonwealth of Pennsylvania passed a law that makes that illegal. Had that occurred after the passage of the law, I'd wager it could have been justification to overturn the decision and re-try.

(b)  Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.

I even wonder, if that statement was recorded in court record, if you could get a re-hearing because of it being so blatantly against the current statute.

[ForeverDad]

I think many of us fathers (mothers too, seems the wobbly squeaky wheel gets the grease!) can sum it up in this way, "What the courts decided in __ minutes for the temporary order, it took me __ years to correct."  In my case, it was 30 minutes versus 8 years.

Judges generally know how to skirt around the gender neutrality issue.  For example, they can choose to use policies that generally favor women and just avoid stating gender or making observations of that sort.  In my case, although my then-spouse was just released on OR (own recognizance) for her Threat of DV charges, the judge ignored it and basically asked one question: "What are your work schedules?"  Yes, you know the answer, I the man was diligently going off to work while she had quit her work after her family leave time ended.  I replied I had a standard work schedule and she stated she "worked from home".  Well, figuring she wasn't even allowed near home while I was 'protected', she also was only earning $100-$200 per month!  So she got temporary custody and later I was ordered to open my wallet wide for child support.

So you filed 13 months ago.  I think you have a case to ask for a temporary order, already a year has been lost.  Whether the judge will grant it is another matter.  But you have a couple things in your favor... .

While courts generally grant continuances, there is a limit and it's about time your judge gets peeved with the repeated delays.  A few continuances are understandable and even expected.  Too many and you or your lawyer need to stand up to the judge and clearly call it for what it is, a delay tactic.  (In my case my lawyer was going to object to another continuance - "ex has back trouble, seeing a doctor and can't appear at a pre-trial which she wasn't even expected to attend" -  but the judge beat him to it, denied it and held a judicial telephone conference instead.)

Also, the judge ought to be putting the child's interests first.  You children need your input and support sooner rather than later.  Unreasonable delays are, in effect, harmful.  Try to make a case for a temporary order while the case proceeds at whatever pace.  While a temporary order technically may not be binding in a final decision, they do set the tone and direction for the outcome.

[david]

Pa did pass that law after we went through the courts. The new law actually requires the judge to put in writing the reason for their decision. All a judge had to do before was to make a ruling and that was that. A lot of the judges in the county have been retiring and with it the tender year doctrine has been slowly going by the wayside. It's still an uphill battle though.

That is why I have become somewhat obsessive with documentation. I have copies of every homework for the last two years. That is a big pile. I have one piece of paper spelling it out with total number of homeworks with dad, total number with mom, total number incorrect with dad, and total number incorrect with mom. It comes out to 94% with dad and all are complete and correct. The 6% with mom has 45% incorrect or incomplete.

The first pile is from two years ago which is before I filed. The second pile is after I filed. There is little change between the numbers. I made it clear that the top sheet is to be introduced as evidence. In the past when I had piles with a top sheet the judge had no interest in looking through it. He handed it to ex and ex simply agreed with the top sheet. That became evidence.

Getting 50/50 will become 80/20 in short order because of ROFR. Once ex views it as she lost things will change and she will move on. She has no real relationship with either boy at this point

[david]

So my atty contacted me. It's exactly as I suspected. Ex sent a letter to the judge seeking a continuance so she can retain legal counsel. My atty replied stating ex knew her atty withdrew in Feb, went through a custody eval that finished months ago, knew we had a hearing in Sept, and said ex is just dragging things out for no good reason. Waiting for the judge to make a decision.

[Matt]

Sounds like your attorney did the right thing - pushed back hard and fast, and called the other party out.  That may be all you can do.

If the judge allows this delay, don't sweat it - sad but just a bump on the road.  Every "one more chance" your ex is given will make the court a little more confident in ruling against her at the end of the day.

But you're right to direct your attorney to continue to oppose delays and point out how unnecessary and harmful they are - keep making that case relentlessly until the court says enough is enough.

[david]

Just received a call from my atty. The judge is NOT granting a continuance. The hearing date will not be changed.

[Matt]

Just received a call from my atty. The judge is NOT granting a continuance. The hearing date will not be changed.

Very cool!

When is the hearing scheduled?  And do you feel very prepared for it?

[Nope]

Just received a call from my atty. The judge is NOT granting a continuance. The hearing date will not be changed.

[scraps66]

Make this one count.

[david]

Sept 15. I am 95% ready. I have a few things to put together for my atty but he has the major stuff already.

I sense ex knows there is no continuance. I received a nice email today from her. That is the second one in the last week. I haven't had a nice email in 7 years.

Now I just have to be extra careful when picking up the kids at her place or any other time we may be near each other.

I feel confidant things are going in the right direction. For the last two years I stayed focused on the boys, gave ex all the rope she wanted, and documented everything.

[livednlearned]

Just received a call from my atty. The judge is NOT granting a continuance. The hearing date will not be changed.

That's great david. I hope it's a sign of good things to come!

[Matt]

Yeah, it sounds like things are going in the right direction.

[whirlpoollife]

 

Just received a call from my atty. The judge is NOT granting a continuance. The hearing date will not be changed.

glad to read that!

[ForeverDad]

Now I just have to be extra careful when picking up the kids at her place or any other time we may be near each other.

I quickly learned that my ex had a desperate need to frame me somehow with some sort of allegation to make me look as bad as or worse than her.  Good that you're alert to that risk.  Never worked in my case, apparently my court didn't care who looked worse, though the court still gave her default preference, far more and far longer than it should have.

My ex was very entitled when we separated, when the divorce case started, when the divorce ended, when I got legal custody.  Finally, this past winter when son was nearly 12 years old and I got majority time, only now has she been less confrontational.  She still flares up when the phone doesn't get answered or I seek a minor change, but it's like the difference in Florida waves between the Atlantic side and the Gulf side.

[catnap]

Just received a call from my atty. The judge is NOT granting a continuance. The hearing date will not be changed.

Good news!     

Now I just have to be extra careful when picking up the kids at her place or any other time we may be near each other.

ABR when picking up and dropping off or if possible have another adult with you.  

[david]

Back in 2010 we were going through a custody modification. Ex had a fight with S15 (then S11). She kicked him out of her place and called me to tell me. I had just dropped them off less than 10 minutes prior. I turned around. The short version: I got arrested for the weekend and later convicted of disorderly conduct. I spent two weeks in jail and was put on a leave of abscence (I'm a teacher) until my record could be expunged. That can get started in October of 2015. It should take 6 to 10 months and about $700. I will be very careful from this point forward. Ironically, I did get some extra time with the boys back then.

The boys are with me until Saturday and then they start school next week. Ex called today and started an arguement with S15 (deja vue). He handled it well and told his mom he was hanging up. He talked to me afterwards about what happened and it sounded like she did try to pick a fight. I told him that he handled it well. He expects her to start when she picks them up Saturday. He sounds like he will stay calm. He has no idea about the hearing, etc. They were included in the eval but that was months ago and I haven't spoken to them about anything else.

[Matt]

He has no idea about the hearing, etc. They were included in the eval but that was months ago and I haven't spoken to them about anything else.

I would probably try to figure out a way to tell them what is happening, but in the simplest (true) way, and appropriate to their ages.

Something like, "Your mom and I are going to court next week - Tuesday afternoon - I'll be home around 4:00 that day.  Not a big deal, just a check-in with the judge to make sure everything is going OK." or something like that.  Minimize the drama.

The reason I'm suggesting this is that if their mom tells them first, she might spin it somehow, and they won't appreciate that you didn't tell them, and they'll probably believe whatever she says.  You'll be on the defensive.  Better to get it out there, very simply, and then answer any questions they have.