Asked for Suggested Custody Agreement

[ParentingThruIt]

Hi all, I've been here about a year after ousting my uBPDex from our home after years of erratic / difficult behavior and about six months of passing out routinely while watching our kids due to mixing mental health meds and alcohol and maybe an emotional collapse etc.

We are in the process of divorcing. I was able to get the kids into therapy right away (he previously opposed this) and also get them more play dates and try new activities etc. They are both doing really well despite the challenges of navigating a divorce.

we engaged a Guardian Ad Litem to do a custody evaluation.

The GAL just asked us each for what each of us think the new custody arrangement should be. I wasn't expecting this - I thought she would hand us a recommendation.  I'm still wrapping my head around it. Here's what I'm weighing.
- Current custody - he has them for a 3 hour dinner visit one night a week. On weekends - he has a 24 hour sleepover alternating weekends and an 8 hour day visit the other weekends.
- The past year has been mixed. He has been more stable than before in some ways -- he got a job for the first time in 8 years and set up an apartment - but doesn't seem to be managing to a budget; has had some really irrational and high intensity responses to some situations; and he as done little to zero taking the kids to activities on "his time".
- Much of the time the kids spend with him, they are on screens. He's taken them to 2 birthday parties on "his time" in the past year and has skipped or switched his time with me to avoid other birthday parties. there have been no play dates or peer social activities on "his time."
- He has to do a breathalyzer (court ordered) before and after visits and has passed them. At times when he's on the phone with the kids his voice sounds to me like it's slurring but I don't know if he's tired or what in those moments.
- He is likely to get some kind of gradual step up plan, but I am not sure what it should step up to.

Thanks for any ideas as I consider this.

[kells76]

A few thoughts in no particular order:

He may be parenting at a level that he can manage (whether that is conscious or not). Maybe now is not the time for proposing big changes.

 I wonder if there's a way to have any proposal for step up be on him, not on you, but agreement must be between both parents or the schedule stays as is? Kind of like -- if he doesn't like what you propose, then it's not on you to keep coming up with ideas. You'll make one proposal and if he doesn't like it and cannot propose something you agree to, things stay status quo.

I will say it can be tricky for the parent with less time to do the birthday/playdate stuff -- it can feel like you're missing out on time with just you and the kids, because % wise it's a bigger percent of total time than for the parent with more parenting time. That being said, I hear you that it sounds like the kids are doing screen time a lot with him. Is that individual screen time (everyone on their own device), shared screen time (gaming together, watching movies together)...?

And if I'm following, he is not flat out refusing to take them to the birthdays on his time, it's more that he'd rather not, and either gives you that time, or trades that time? I guess my question is -- is the situation that the kids have activities (sports practice, clubs, etc) during his time, and he will not take them, and not allow others to take them? Or they have activities during his time, and he is OK with them going (doesn't obstruct/prevent) but will trade or gift time so you take them instead?

In a way, we're in sort of a similar situation. SD16 told us near the end of last school year that Mom wasn't getting her to school on time. Soon after that, SD18 told us that Stepdad was an unsafe and erratic driver (emotional outbursts, not letting kids exit car, etc). H and I took over as much driving as we could so that SD16 would not be tardy and to minimize them being in the car with Stepdad. It's a totally lopsided driving arrangement; we do 100% of pickups and dropoffs for H's parenting time, plus 4 out of 5 dropoffs at school (all Mom's mornings). But it solves the safety problem. Might be unfair for you to do birthday/activity driving, but it gives you more time with the kids, and then he's not driving stressed/impaired with them.

I don't know how to put that in a custody agreement, but maybe you can memorialize the arrangement somehow -- that any time the kids' dad can't/won't/doesn't want to drive the kids somewhere, he must make alternative arrangements, starting with you. Not sure how to nail that down, your lawyer may have suggestions.

...

So maybe your proposed step up plan would be:

-verification that he has taken a parenting course (this could address your concerns about screen time/parental interaction). In our city, a local faith based counseling practice offered a free verifiable 12 week parenting class. There are probably free or low cost options in your area.

-continue breathalyzer

-clarify getting kids to/from activities

-remain employed. if employment ends for >1 month, plan reverts to this current one, to enable him to spend time finding work. once he is employed again, return to step up plan

-step up in time could be: the 3 hour midweek dinner time continues as overnight and he drops kids off at school (is this feasible with his work?) or gets them on the bus or carpool. That step up would start after he takes the parenting course, and be in effect as long as he continues breathalyzer and maintains employment. There are probably other ideas for where to add time, but if I'm remembering correctly,  you've had concerns about him vacationing with them? At least if it's weeknight into school day, much of their day is at school, and the school can notify you if they aren't there or aren't getting there on time.

...

Can the GAL remain on your case as a neutral 3rd party to approve any proposed step up plan from him, and to monitor compliance with breathalyzer/employment/etc?

[ForeverDad]

I will focus on one aspect.  Currently he is getting parenting time (visits) every weekend.  That won't work over extended time.  Courts are accustomed to parenting schedules with alternating weekends.  Ponder whether that would work better for you.

He already gets one overnight on alternating weekends.   Fine, leave it as is.  But why not suggest the other weekend be opened up to you for whatever activities with the children you would like to do, short visits out of town to parks, amusement parks, outings and visits, etc?

So what can be done about the current weekend day visit he has?  On many schedules the non-primary parent gets a visit, such as a Thursday evening before the primary parent's weekend.  Apparently you already have that in place.  How about... he could get a slightly longer daytime on his short one-overnight weekend?  (If you have to negotiate.)

Wouldn't that be helpful for you and the kids, to have a full weekend in your care for longer activities?

A side question... do you follow the court order regarding a holidays and vacation schedule?

[ParentingThruIt]

Thank you both. I feel so much pressure to offer him more time.  The one thing I like about the current schedule is we each get part of the weekend, it's not all or nothing. The hard part is if I want to do an overnight I have to negotiate w/ him and that's been pretty inflexible. was thinking about something like each parent can have X full weekends a year.  3 day weekends help too.

Currently we have nothing official in place for school vacations, holidays etc. We have had to negotiate them all ad hoc. For the holidays I gave him extra time but stuck to around 24 hours max at a time since that's what he has in the order.

[ForeverDad]

If you do a search on my posts mentioning "fair" or "fairness" you will note that I warn about our otherwise excellent quality of fairness.  Yes, we pride ourselves in that but we need to balance it with practicality and insight, otherwise we could unwittingly sabotage ourselves.

The professionals (GAL, judge, etc) will look out for your ex's welfare to some extent but you can't leave it up to others to look out for you and your kids' welfare.  That's your task.  You make sure protections are in place, or as much as officialdom will allow.  You make sure you and your kids are safe and well cared for.  You are your own best advocate for yourself and your kids.

Don't get sidetracked onto whether you are fair or whatever.  It's okay to be a Mama Bear!

[EyesUp]

Currently we have nothing official in place for school vacations, holidays etc. We have had to negotiate them all ad hoc. For the holidays I gave him extra time but stuck to around 24 hours max at a time since that's what he has in the order.

Excellent call-out.

I would consisely state to the GAL that where parenting schedule is concerned, you'd prefer to get details established, at least to start, in order to minimize ad-hoc negotiation and potential conflict.  Then propose exactly what you prefer.  Always be the parent with the solution.  Don't leave it up to the GAL or the other parent.

In my divorce agreement, my atty used language that I didn't see as problematic until we put it into practice.  Language re: vacations referenced "state and federal holidays" which seemed like good boilerplate language at the time.

It turns out that our local school district also observes certain holidays like Diwali that are not state or federal holidays. And there are also early release and no school days for professional development for school faculty. Again, these are not state or federal holidays, and therefore not mentioned by the agreement...

It took no time for my ex to focus on these days and some perceived imbalance in our 50-50 schedule because a number of these days occurred during my time in the first months after the D was finalized... she was unable to perceive that it would all average out over time.

In your case - Perhaps your stbx won't push for more time, however it sounds like he may have difficulty with schedule variations...

Here's how I'd approach this in your situation:

First, incorporate encompassing generic terms like "early release and no school days" rather than the more specific "state and federal holidays" (I gave my atty feedback on this).

Next, recognize that the court typically views parenting time in terms of overnights - not the hours and minutes of the day.

I appreciate your concern about screen time, active parenting, etc. That said, how about this:

STBX gets one over night every other weekend, and two dinners per week.

This gives you some predictable solo time on weekends - important whether you're dating or not - as well as some increased flexibility during the week.  It completely avoids the issue of early release/no-school days - the schedule is the schedule.

This proposal effectively reduces total overnights (in theory, to your benefit), but increases the kids' cadence with dad (in theory, in fairness to dad and possibly to the kids).

Would this work for you, and do you think that your stbx can handle it?

In regard to school vacation periods, you or your ex may wish to take trips with the kids - now or in the future.  Incorporate language accordingly.  Here are a few options (multiple approaches)...

- the normal schedule will be suspended for vacation periods and the children will remain with the mother.  this may be changed by mutual written agreement between the parents with 30 days notice
- the normal schedule will be suspended for vacation periods and the children will remain with the mother.  this may be changed by request from the father at the mother's sole discretion, via written agreement between the parents with 30 days notice
- parents will alternate Feb and April vacation periods
- parents will alternate xmas and new years
- parents will split vacation periods (define exactly how, e.g., Mon-Weds and Weds-Fri with a defined transition time on Weds, alternating each year to address the 2/3 night split)
- the regular weekly schedule will continue through the summer break
- the schedule will change during the summer break as follows... (i.e., propose what you prefer - if your kids are athletes or are likely to have activity commitments - camp, etc., - anticipate and define here)

The point is:  It's to your benefit to get terms along these lines into the agreement, and you're in a good position to propose what you feel will work best for you, your kids, and your stbx - and to demonstrate to the GAL that you can bring solutions to the table that work for all parties - especially the kids. Don't forget: the GAL is the kids' lawyer...

Hope this helps.

[ForeverDad]

Some entitled or possessive parents may go overboard on birthdays, though it may not apply with your ex.  The concept is that states alternate birthdays with the parent on alternating years, the children's birthdays, most states don't include the parents' birthdays.  (Same for most holidays, they are alternated throughout the year so each parent gets them spaced out over the year, then the next year everything is alternated.)

Also, for each child's birthday, all the children go, you don't generally separate the kids, except for illness, too young, etc.

As for the parent in the year without the kids, no worries, you can still celebrate birthdays - and other holidays too - on other days when the kids are with you.  Actually, not much of a downside since many kids like getting double the number of birthdays and holidays.

[ForeverDad]

Here's another insight.  He's been getting one overnight every other weekend.  For a year.  More or less the professionals, including court, would consider that the norm for "what works".  Therefore, court will not try to venture far from "what works".

What does that mean?  Don't negotiate against yourself when you're already in a favorable position.  The officials won't or shouldn't expect you to be "overly fair" or to go against what you consider optimal, even necessary, in ensuring the welfare of your children.  After all, likely you have no assurance their father has improved from his prior patterns.

[ParentingThruIt]

Thanks so much for your thoughtful replies. There's pressure from my atty to submit something that eventually steps up to 50/50. It's hard for me to wrap my head around that right now.

A tricky thing about him in general is he cares about the kids very very much and pays a lot of attention to them, when he's ok. But when he hits his limit he checks out or has been blaming towards my daughter in particular. he will go as hard as he can for the kids but his limits are still there. Also his thinking gets irrational. When he's good he's really good, but he has limits.  It's hard for me to translate this into an appropriate amount of time and shared responsibility in this imperfect system. Based on track record I am also unsure of whether he will attend social events with them, coordinate play dates, or keep things like dental appts. Dental I can do when it's twice a year but when they get another round of braces that will be tricky. I feel like I am solving for an impossible equation.

The framework of going slowly from where things are now makes sense to me though. I don't think I can personally solve this equation.

[ForeverDad]

There's pressure from my atty to submit something that eventually steps up to 50/50. It's hard for me to wrap my head around that right now.

The problem with step up schedules is that almost never does it include step down clauses.

Essentially they want you to schedule step ups but when the other falters, as will surely happen eventually in our sort of cases, then you would have to return to court, file a motion, wait for a hearing date, wade through a hearing, face continuances, etc, etc.  Meanwhile you need the authority to keep your kids safe.

And if someone has addiction or alcohol issues, relapsing ("falling off the wagon") is a high risk and you'd need flexibility to reset promptly when that happens.

[EyesUp]

Has your atty clearly and concisely articulated a reason for the stepup proposal? 

i.e., is the atty making a cookie-cutter recommendation while sleep walking through your case, or is the recommendation based on your specific situation, e.g., direct feedback from OC, based on the judge's patterns/predispositions, state guidelines, analogous parenting scenarios, and especially the GAL's POV?

I'd push for more info, and direct the atty to propose a solution based on your specific situation, if that's not what you're getting...

This may be resolved with your atty by clearly stating "I appreciate that the stepup plan may seem reasonable and save time in many situations - however it won't save time if the coparent doesn't change.  I'd prefer to establish a parenting plan based on what's worked for a year, not based on what may or may not happen in the future" - see what the response is... 

Also worth considering how your atty's recommendation aligns (or not) with the GAL's. 

As ForeverDad says, status quo is often the default - unless there is conspicuous evidence that calls for a change.

[ParentingThruIt]

Thank you so much! The amalgamation of all your advice is what I think I have to do.
- Reiterate that this is not a cookie cutter case and there are actual risks.
---At times those have been safety risks. In addition there's the social isolation part.
- Include step down in addition to step up.
- Work from where we are, not a mythical legal equality.
- Make the step up plan extremely gradual.
- Reiterate my concerns. He was never really able to handle the kids full time and manage his mental health, let alone work. Now he has to work. He is on a new med but doesn't seem to have new supports in place.
- My goal, as it has always been, is to give the kids meaningful opportunities for their relationship with him in a way that is safe.

An ongoing confidant put it well... he seems to have persistent trouble identifying and managing his feelings. When he feels ok, he can be lovely and caring. When he's having trouble, he really has trouble and can get very irrational and even act in ways that are dangerous. He doesn't seem that he's been able to reflect on this over time and comprehend it. As you guys point out, it's likely that this pattern will continue. It doesn't make sense to award time based on the "good" periods because they are not reliable.

[ForeverDad]

Some of our new members will include in their first posts, "My partner is a good mother/father but too often not."  Unfortunately a person is not a "good" parent when there are regular poor, neglectful or even abusive lapses.  We can't slice and dice a parent into being good.  The whole is what matters.

Court doesn't try to change people so neither should we.  Deal with them as they are.  If they improve, great.  If they don't, then just continue on with what has been working.

Secondly, professionals, even the court, has a policy presumption that poor behavior during a breakup or divorce ought to be viewed first as just the discord of the ending relationship.  Only afterward, much later, will it see the need to adjust an order, often very gradually so changes are as minimal as possible.

[ParentingThruIt]

Thank you very much. That's a reminder that hopefully the record of several years of issues preceding this will count.

[ForeverDad]

The record of several years of issues...  Ah, if only.  Be aware that in our experience most courts are only concerned with incidents during the prior six months before filing.  Older incidents are typically viewed as legally 'stale' or too old to apply, especially if it is undocumented "he-said, she-said" hearsay.

Yet, a greater span of time ought to be allowed for past behavior patterns.  After all, you do know your ex best, but it's difficult to anticipate how much weight your non-professional experience will carry with officialdom.  An experienced family law attorney could clarify.

[EyesUp]

@OP,

Great job establishing and summarizing a position to move forward.

Still curious:  Where is the GAL in this mix?

Good luck with your next steps - please let us know how it goes. 

[ForeverDad]

Guardian ad Litem (GAL)is a lawyer for the minor children.  You have a lawyer, your ex has a lawyer.  It makes sense that the children can have a lawyer to protect their interests and welfare too, if necessary.

However, just like your lawyer or ex's lawyer, GALs can be experienced or inexperienced, biased or not, gullible or not, etc.  Just as you may need to remind your lawyer to keep on track, same goes for the GAL.

[ParentingThruIt]

I feel good about the GAL overall. She’s experienced and has been very good with my kids. She has a child of her own and has been through a divorce herself.

I’m being told that the downside of going mama bear is being painted as a helicopter mom or controlling.

I put forth a step up plan that is gradual and I feel good about. I am hoping to at least get the step up model not instant 50/50 like he’s requesting. We had a fair amount of common ground on holidays / breaks.

I think it’s going to come down to the GAL’s impressions of the situation and how the kids are doing. And whether his past instability seems like enough of a threat to be an issue.