what will the judge do?

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

So my ex has not responded to any communication from me since February 25th. I have emailed him 3 times about holidays, including daughters birthday( I have her all the holidays, father's day, exes birthday, her birthday, July 4th, today Easter, etc. Just by chance because of our rotating schedule), offered to share those days with him. I have emailed twice about a dentist appointment. I have emailed twice about infant developmental assessments, asking him to go, gave him a copy if the last one when he didn't go. I had emailed and wrote letters requesting we discuss taxes since he wanted half of mine(we were not married). He is just not even responding at all. He walked out of mediation in October. I have asked once a month since then for him to go to mediation. I have asked him to do a coparenting program with me, even have given him copies of the things I work on at the program, like conflict resolution, taking the high road, etc. Now he is sending back the breast milk I put in daughters bag when she goes to him. Ex is asking for sole custody and to be able to move away, I am asking for joint custody. What do you think the judge will do. I am having a hard time justifying even joint custody in my own mind with his behavior, but NH doesn't want parents to have sole custody.

[rarsweet]

So my ex has not responded to any communication from me since February 25th. I have emailed him 3 times about holidays, including daughters birthday( I have her all the holidays, father's day, exes birthday, her birthday, July 4th, today Easter, etc. Just by chance because of our rotating schedule), offered to share those days with him. I have emailed twice about a dentist appointment. I have emailed twice about infant developmental assessments, asking him to go, gave him a copy if the last one when he didn't go. I had emailed and wrote letters requesting we discuss taxes since he wanted half of mine(we were not married). He is just not even responding at all. He walked out of mediation in October. I have asked once a month since then for him to go to mediation. I have asked him to do a coparenting program with me, even have given him copies of the things I work on at the program, like conflict resolution, taking the high road, etc. Now he is sending back the breast milk I put in daughters bag when she goes to him. Ex is asking for sole custody and to be able to move away, I am asking for joint custody. What do you think the judge will do. I am having a hard time justifying even joint custody in my own mind with his behavior, but NH doesn't want parents to have sole custody.

[livednlearned]

Sole custody is very hard to get where I live too. It took 4 years of consistently erratic and abusive behavior before the courts awarded me sole custody. So yes, it's hard to get at first, but you can get it. That's why people here refer to it as a marathon and not a sprint. And why it's important to think of your case in terms of a long-term strategy.

Is this your first hearing, other than the temporary one to establish interim custody?

If so, your ex's lack of response or participation should be documentation enough that sole custody will be denied. For what it's worth, asking for the moon and then doing nothing to earn it seems to be standard operating procedures for BPD dads, at least judging from these boards. Courts know what an engaged, proactive father looks like. Your ex is not acting that way.

Ask for as much custody as you can. There is a lot of theater involved in custody battles, so ask for sole custody. You won't get it right off the bat, but it will communicate to the court that you have serious concerns about your ex's ability to parent effectively and safely. It helps if you ask for sole custody to establish consistency. In mediation, ex and I were able to agree on everything except legal custody. So our order says "parties agree to everything except this one item which will go before a judge." And then it sat there for a year and a half. Each time I went back to court, my L said, "Judge, just like my client has been saying since day one, N/BPDx cannot focus on the best interests of the child. His anger issues impair his ability to set aside grievances, and in fact he continues to manufacture problems with my client, and the minor child continues to not receive services he is entitled to receive." Or something like that.

What kind of visitation schedule do you have now, and what kind are your proposing if he stays, or if he moves away?

My lawyer told me to never deviate from the court-ordered visitation schedule. If your ex does not ask for more time, probably not a good idea to offer it to him during an active custody dispute. In court, "being reasonable" means following the court order. Judges and family law court cares most about whether or not you can keep your case out of court -- that's their number one priority. If you deviate from the court order, it says that you do not observe the authority of the court, and so if you end up back in court trying to use them to solve your problems, you get chastised, and very little will get done. 

[rarsweet]

In September the judge wrote temp orders, just alternating every three days, that's the order. I filed and offered that ex has daughter all my working hours since he wasn't working, hadn't in a year, and that he could have her one of my full days off each week.( I work 6 hours a day). Ex wouldn't agree, he wanted to move to the next state over to stay with his sister, and to have me have supervised visits because I was cosleeping .( nursing a 7 week old). The judge said since we couldn't agree we would alternate and to ex had to stay in this state( staying with his dad). Now with  more thought I am offering ex has daughter Saturday am through Sunday am and 3 hours every Tuesday and Thursday , 3 day weekends every Monday holidays, alternating holidays, and a step up plan that he would have daughter well Thursday am to Saturday pm when she turns 3. Ex wants to move away( at least an hour if he stayed with his sister), me to have daughter Monday and Tuesday, 12 hours alternating holidays, and him to have sole decision making. Here it is 8 months into temp orders and he's still jobless ( jobless since october 2013) and won't communicate except to bash me.

[Sunfl0wer]

When we were going through this, our L told us that the main thing judge will be asking himself is: "Which parent will foster/allow best relationship with the other parent?"  She explained how judge really wanted to feel that one of the parents would be more cooperative, follow judges orders, and generally conduct themself in a way that allowed the child greatest access to a relationship with both parents.

Now, idk if this was general advice, or specific to our judge, that she was familiar with.  However, when put into those terms, it was clear.  UBPDmom had already had a trail of not following court orders - big no no!  Also it was clear that mom just wanted "more" and was not actually cooperating

Needless to say, mom did NOT get close to sole custody.

I'm sorry you are dealing with this!  This was one of the worse moments of my life, the constant uncertainty looming over SD well being.  Keep hangin in!

[Matt]

Many states have specific criteria that the courts are supposed to use to decide custody.  Some states base their criteria on Minnesota's - 9 items including what Sunflower said about which parent will foster a relationship between the child and the other parent.

It might be a good idea to find out what the criteria are in your state, and prepare information showing that you look good by each of those criteria.

You may also want to consider making a stronger proposal.  Your ex is showing pretty clearly that he isn't going to do what he needs to do, and expecting him to do so much may make your life more difficult.  If you put forward a strong proposal - by which I mean primary custody for you and less time for your ex - and show that you are very prepared to take care of your daughter, the court may approve your plan.

The alternative - your ex's plan - really makes no sense.

[scraps66]

Following what Matt says, and from my own experience in my own courthouse, sometimes the criteria for custody gets lost and diluted with the "this is the way we've always done it" ether.  I had Petitioned the court for a number of lingering custody issues, fundamental and trivial, obstruction, interfering at transitions, interfering with my daycare, etc.  When we went in front of the Master, inexperienced and untrained in family court, it was obvious that my ex was not abiding by the intentions of shared parenting based on the specific instances I had presented.  So the Master comes off with some advice, that, "if you guys don't get it straight between yourselves your case will be relisted.  you guys had your custody set with Master Fancy Pants, but she's retired, and she was sort of a split custody Master.  I'm different, I'm more of an 'every-other-weekend guy cuzz you really need someone in the lead."  I had many thoughts to myself, primarily does this guy know what he's saying openly in this courtroom, or does he really even know what the criteria is for determining custody.  Was never mentioned.

This does depend on your courthouse, and whether your L will actually stick up for you and diplomatically oppose the court if necessary.  Advocate for you. In my courthouse all of the local L's know the place is corrupt with incompetence and politics.  So few will speak up against a judge or master.  I'm still nto clear on whether it is good to have an attorney in the click, or one just outside the click without obligations or ties to the courthouse.

Beyond that, your recent history is proving that your ex could not support full custody. In your case I may be considering trying for full custody to simply avoid getting into a long drawn out evaluation time period to arrive at the very fact that your ex cannot support even shared custody.  Cut to the chase and avoid all the expensive BS.

[Sunfl0wer]

What has your L advised?

How could you be expected to co parent without him responding?  Your child is young now, but what happens when she is school age?

We had issues enroll ing SD in school b/c mom left with BC and refused to supply it, also she refused to sign enrollment papers, refused to sign off on a therapist.  We had to go to court to force her to do anything.  It was ridiculous, we never got sole custody, our L told us not to expect it.  As a "consolation prize," we did get all legal ppwk items needed in our possession included in PP, that we get to hold all child's BC, passport etc.

[livednlearned]

Some judges stick so close to the prior order that everything else (ie. common sense or instinct) gets ignored. That includes so-called temporary orders. In those cases, you want a court like the one Matt describes, where they do things in a more technical and proper way.

If the judge cannot figure out who the responsible, stable, centered parent is, you'll get a very conservative ruling that sticks close to what you have now. Judges do not want their rulings to go to appeal and be overturned, so the ones who care more about their hide than your case will rule conservatively. They have nothing to lose, because they can point to the prior order as precedent.

[brandelin]

Yes, courts do try to make sure the children have both parents.  If he's seeking sole custody, he'd have to have reasons and there's a good chance the judge will see that as annoying, for lack of a better word.  They don't like it when a parent tries to take sole custody based on things other than major, safety geared actions. 

In your position what I would do is ask for the custody you want. If you're comfortable with the 50/50 arrangement, then leave it with that.  But also ask the judge for a parenting plan to be determined in mediation.  That will be a legally binding contract that arranges everything for you guys, so you don't need to argue about anything.  If it's that your child is fed the breastmilk you provide, that that's in the contract. If it's that you need the birthdates and holidays scheduled, then that will be in the plan. 

The judge should appreciate that you're trying to work with him instead of against him. 

[rarsweet]

He walked out of court ordered meditation 33 minutes into it in October and he has ignored all my requests for meditation since. I filed for contempt, the judge said he would just address it at final hearing. And we can't possibly continue with the 3 day alternating schedule because ex wants to move away and eventually daughter will be old enough for school. I can't imagine ex getting sole residential responsibility because he doesn't have a job and the amount of child support I would be ordered to pay is far below what they could live on. We were supposed to have our final hearing in February but ex asked for a continuance and it got moved to September.

[ForeverDad]

He walked out of court ordered meditation 33 minutes into it in October and he has ignored all my requests for meditation since. I filed for contempt, the judge said he would just address it at final hearing... .  We were supposed to have our final hearing in February but ex asked for a continuance and it got moved to September.

Typically continuances are 1-2 months due to the court's full schedules.  I recall my divorce trial was 4 months out because that was the first full day the judge and both lawyers could agree on.  A 6-7 month delay sounds quite long.

However, the current issue, parenting schedule and moving do see more time-sensitive than the custody aspect.  I doubt court would want to change custody before a full hearing, trial or the court's preferred solution, settlement.

Court may assume that if a settlement can't be reached then both parents are at fault.  So just make sure the court knows it's just one and you're not the unreasonable one.

And we can't possibly continue with the 3 day alternating schedule because ex wants to move away and eventually daughter will be old enough for school. I can't imagine ex getting sole residential responsibility because he doesn't have a job and the amount of child support I would be ordered to pay is far below what they could live on.

Now this move issue may be basis for getting a hearing sooner.  However, be careful not to say he can't move, if that would appear controlling.  He is an adult after all, if he wants to move, then he can move.  BUT... .the child stays local or at least not used as basis to move the child away!  See how it's all in how you phrase it?  Sure, he can move away, but the child stays!

Actually, ex not having a job is a two-edged sword.  While it might reflect poorly on his own issues and his ability or follow-through to support a family, on the other hand the court may think he's available to parent more.   For example, when I separated, my rushed to family court to block me from parenting.  Court didn't see me as a threat to my family, it had children's services check me out and the investigator stood up and stated they had "no concerns" about me.  (Since it was her allegations, they didn't check her out.)  So far as I could tell, the magistrate ignored the line on her petition where my stbEx had to list the case number of the other court where she was facing a pending Threat of DV charge.  The magistrate asked one question... .What are your work schedules.  I stated I had a regular schedule.  She was blocked from our home by the other case's temp order but she still stated, "I work from home."  She got temp custody and majority time.

One thing you might have in your favor is your gender, if the court finds no problem with you as mother, it might default to you being the primary parent.  Regarding work, show that you are responsible and support your self and provide a residence for yourself and your child.  Contrast that with whatever excuses he gives not to work.  Just because he is 'available' due to lack of work is not basis for him to get more time.  Document too his other poor behaviors.  In temp orders they may skip over a lot but (1) they should give more attention to the final decree and (2) if you can get the best possible temp order now the it will be less of a hurdle to transition into post-marriage orders.  (Court can assume that if a temp order is 'working' then don't mess with it.  That's why even a temp order is important to get right sooner than later.)

My custody evaluator made a perceptive observation in the report's summary, "Mother can't share 'her' child but Father can."  The point is that court ought to be inclined to place primary parenting with the parent who is able to share the child, not the parent who may use the child as a possession, weapon or leverage.  It's okay to state that though father is seeking custody, if one parent is to have custody then it ought to be you since you can put the child's interests first.  And if the court doesn't want to assign sole custody to either parent then ask to have Decision-Making or Tie-Breaker status to avoid impasses and repeated returns to court.

And just because you work is no reason for him to ask for your time.  Actually, if he uses that logic and it works at court, he'll have every excuse and incentive to stay unemployed.  You and your lawyer can argue that it is better for the parents to be gainfully employed.  Millions of parents use daycare and it is an accepted substitute while the parent or parents work.  Don't let him use his unemployed status to undermine your parenting.  (I had to fight that in the early days of my case.  Ex felt that if she didn't work then whenever I had to be away working then she ought to have our young child, even if it was only for a couple hours after school.  I had to get a clause specifically added to the order that daycare was considered the equivalent of school, my use of daycare was no excuse to commandeer my parenting.)

[Matt]

It may be too late now, but you don't have to agree to every continuance.

Tell your lawyer that if the other side requests any more delays, she should say no, and be prepared to say why:  This situation is not what's best for the child, and your ex has had plenty of time to get his act together.