Court Proceedings

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

Well, not viewing her as SO anymore... .

So after 7.5 months my BPD Wife finally served me with divorce paperwork. This is kind of funny since she had been in another state that entire time, and is no longer a resident of the state she filed in. (In this state a plaintiff on a divorce hearing is required to be a state resident)... .lawyers that I have consulted with said not to push the issue... .Don't want her trying to file in another state... .

So, I got served at lunch, came home and received a call from my Landlord to let me know that he sold the property and gave me 30 days to vacate the home.

So my family (myself and 3 boys) moved in with my parents 3.5 hrs away.

Before I left, I filed the "Response and Counter-Claim". 61 days later she still had not done anything with the courts. So, I called the Clerk of Courts and they told me that the plaintiff had to request a hearing. This upset me greatly, totally ridiculous. So, I went online to a legal aid site and posted about it. A lawyer informed me that they are actually trained to say that the plaintiff had to request the hearing. But said there was a way to modify the paperwork to get it processed and request a hearing. So, I did as I was instructed and filed for a hearing. The hearing on on August 21.

This is really just to say that you can't believe what you hear from the Clerk Of Courts... .There are ways around what they are "trained" to tell you. 

[udunnome81]

Well, not viewing her as SO anymore... .

So after 7.5 months my BPD Wife finally served me with divorce paperwork. This is kind of funny since she had been in another state that entire time, and is no longer a resident of the state she filed in. (In this state a plaintiff on a divorce hearing is required to be a state resident)... .lawyers that I have consulted with said not to push the issue... .Don't want her trying to file in another state... .

So, I got served at lunch, came home and received a call from my Landlord to let me know that he sold the property and gave me 30 days to vacate the home.

So my family (myself and 3 boys) moved in with my parents 3.5 hrs away.

Before I left, I filed the "Response and Counter-Claim". 61 days later she still had not done anything with the courts. So, I called the Clerk of Courts and they told me that the plaintiff had to request a hearing. This upset me greatly, totally ridiculous. So, I went online to a legal aid site and posted about it. A lawyer informed me that they are actually trained to say that the plaintiff had to request the hearing. But said there was a way to modify the paperwork to get it processed and request a hearing. So, I did as I was instructed and filed for a hearing. The hearing on on August 21.

This is really just to say that you can't believe what you hear from the Clerk Of Courts... .There are ways around what they are "trained" to tell you. 

[livednlearned]

Good to know 

Is the Aug 21 hearing simply to have the claim and counterclaim entered?

Are the boys your kids, or will there be a custody order for them?

[ForeverDad]

I do think you dodged a bullet since she had been away long enough to establish residency in her new state.  The states all abide by a 6 months residency requirement for custody-related cases.

Even though she lives nowhere near the kids, I would not be surprised if she files a response or complaint that you moved within the state.

She left the kids with you, right?  You may have a strong case to argue to the court that you have been their primary parent for an extended time and ask that it continue, at least in the temporary order.  (News flash... .our sorts of conflict-filled cases can take a year or even two years to reach a final decree.  That would only strengthen your parenting position.)

I'm wondering how fast you should seek a court hearing.  After all, the longer you have undisputed possession of the children, the harder it ought to be for her to snatch them from your care.  So... .can you give us an idea what she is petitioning for in the divorce as regarding the children and parenting?

I wonder why she chose now to divorce?  Did she meet some one new?  Frankly, don't ask, if she will walk away and not try to dictate the children's life, you're getting off easy.

How would you describe your spouse?  Is she tied to the kids, like an extension of her arms, or is she more interested in other activities or other adult relationships?  Most mothers described here by members are child-clingy, using them as weapons in a divorce, yet some are inclined to wander away.  If that happens, wish them well... .as long as you, as the reasonably normal parent, can have parenting authority and majority time.

Edit:  I've pondered this for a few minutes more and am wondering how much conflict this divorce will have?  Around here we're used to High Conflict divorces with extreme struggles for possession of the kids.  What is she like in that regard?  From another post I gather she just wants to live her own life without marriage.  How does she view the children?  Did she ask the court to give her custody or majority time?  They've been with you for months, is she willing to let to continue largely as-is?

[DivDad]

 You said, "This is kind of funny since she had been in another state that entire time, and is no longer a resident of the state she filed in. (In this state a plaintiff on a divorce hearing is required to be a state resident)... .lawyers that I have consulted with said not to push the issue... .Don't want her trying to file in another state... "

Knowing that different states have different laws, it seems odd that your consulting L's said this.  (1)  First, I am not a L. (2) It appears you do not have a L of record.  Is this correct? I question the advice as to "not push the issue," of an out of state residency and the Petition.  My advice is to retain a divorce lawyer (look around for a high-conflict L) and pose the question to him/her.  Don't assume anything.  Your BPD might know more than you about the divorce laws in your state. (3) If there is a legal technicality later on in the process, (that is, you could be in the final week of the divorce settlement and the BPD could balk and say the out of state residency plaintiff Petition is invalid) then one of you would have to re-file a new plaintiff Petition and you are back to where you are now. (4) Depending on the state, you might be able to file a counter Petition  to ensure that you are in legal standing as the proceedings progress.  (5) Again, you need to RETAIN a divorce lawyer and seek legal advice on this technicality. (6) I agree with other Board members that the longer you have the children, the better is for you and the family.  This too, you must take into consideration.

[udunnome81]

I do think you dodged a bullet since she had been away long enough to establish residency in her new state.  The states all abide by a 6 months residency requirement for custody-related cases.

Even though she lives nowhere near the kids, I would not be surprised if she files a response or complaint that you moved within the state.

She left the kids with you, right?  You may have a strong case to argue to the court that you have been their primary parent for an extended time and ask that it continue, at least in the temporary order.  (News flash... .our sorts of conflict-filled cases can take a year or even two years to reach a final decree.  That would only strengthen your parenting position.)

I'm wondering how fast you should seek a court hearing.  After all, the longer you have undisputed possession of the children, the harder it ought to be for her to snatch them from your care.  So... .can you give us an idea what she is petitioning for in the divorce as regarding the children and parenting?

I wonder why she chose now to divorce?  Did she meet some one new?  Frankly, don't ask, if she will walk away and not try to dictate the children's life, you're getting off easy.

How would you describe your spouse?  Is she tied to the kids, like an extension of her arms, or is she more interested in other activities or other adult relationships?  Most mothers described here by members are child-clingy, using them as weapons in a divorce, yet some are inclined to wander away.  If that happens, wish them well... .as long as you, as the reasonably normal parent, can have parenting authority and majority time.

Edit:  I've pondered this for a few minutes more and am wondering how much conflict this divorce will have?  Around here we're used to High Conflict divorces with extreme struggles for possession of the kids.  What is she like in that regard?  From another post I gather she just wants to live her own life without marriage.  How does she view the children?  Did she ask the court to give her custody or majority time?  They've been with you for months, is she willing to let to continue largely as-is?

She did leave our children with me and a letter stating that I have primary custody. She has requested every Summer and every Christmas to have custody. She's fine with me handling everything, but she wants the fun time.

She does use the children as pawns, and has asked for mediation. I see no point in mediation as our children are not something that I will bargain with. She talks to our boys every night over the phone, which even their therapist says is too much, but I am bound to state law, which requires that she has the ability to contact them unhindered by me. Our oldest son gets really annoyed with her and tells me he is tired of her trying to bribe them all the time.

She actually filed for divorce the same day that she left, but did not have me served until 7.5 months later. Service date is the start date of the action (in legalese). She was on her way to meet up with her new "sweetie" so really the divorce was more of an afterthought. She didn't even fill out all the paperwork right.

Essentially, she moved to be with another man, abandoned all of us, has provided 0 support, still is not working but believes she is entitled to time with the children. I am in non-compliance with state law over her having a 2 week vacation with them, but I will not allow it, as I can't allow her to get them to the state she is in, because the custody case would become so much more difficult.

I do have a lawyer that I speak with, who is a high conflict attorney. He even has a bit of experience with BPD. I have not retained his services at this time due to financial constraints... .

[DivDad]

Looks like you are crossing your t’s and i’s.
First, do you have a custody settlement document from the court? You said, “ I am in non-compliance with state law over her having a 2 week vacation with them, but I will not allow it…” Under what non-compliance document are you stating this?  The BPD letter, or a court document?  More on this below.

Secondly, you said, “I can't allow her to get them to the state she is in, because the custody case would become so much more difficult.”   This is a pretty big deal and you need to protect yourself and the children.  Possession is 9/10 of the law. You need to file a Petition now to keep the children in the state until the divorce proceedings are settled. (That is, she filed, you counter with keeping the children in state). I restricted my children from moving out of my metro area.  You certainly can’t rely on a letter from the BPD if she takes the kids to another state.  Authorities in the other state CAN enforce things (depending on the state) if they are presented with a court order/document.  It’s doubtful they would enforce anything by showing them a un-notarized, written letter.

Thirdly, realizing that all BPD situations are different, I have been through three court proceedings and every time was surprised at how much my exBPDw was way ahead of the game in terms of knowledge of the law. (and knowledge of laws in another state/country.) Fortunately, I had a high-conflict L who made me aware and keep things on the right track.   Every state has different laws, and with that said, I just want to ensure that what documents that were left to you will hold up in court.  (1) Was the letter stating that you have primary custody dated and signed?  I assume it was, but it’s worth mentioning. In my state, the only valid legal document that is recognized by the court (and I underline INVOLVING CHILDREN) is the divorce settlement decree. You can show letters and emails to plead your case, but in my state, it’s not a legal decree. Nothing else matters except a court doucment when it comes to enforcement involving children.  The letter from the BPD could later be argued that it was written and signed under duress. Especially so if there were no witness signatures. Again, the legal standard for what’s acceptable has a high bar when it comes to custody and children's rights. (2) You mentioned, “She didn't even fill out all the paperwork right.”  This to me is a red flag.  It could possibly mean that her Petition is not valid regardless of her residency.  I don’t want to be an alarmist here, but you can’t assume the BPD is not aware of what was done. (3) You might want to see if there is a Social lawyer service in your city that offer free consultations….or ask your L buddy these questions. Especially the issue of taking the children out of state.  Granted, all of this might not be news to you, but just want to keep things on a playing level field for your own protection and the protection of your children.

[udunnome81]

Looks like you are crossing your t’s and i’s.
First, do you have a custody settlement document from the court? You said, “ I am in non-compliance with state law over her having a 2 week vacation with them, but I will not allow it…” Under what non-compliance document are you stating this?  The BPD letter, or a court document?  More on this below.

Secondly, you said, “I can't allow her to get them to the state she is in, because the custody case would become so much more difficult.”   This is a pretty big deal and you need to protect yourself and the children.  Possession is 9/10 of the law. You need to file a Petition now to keep the children in the state until the divorce proceedings are settled. (That is, she filed, you counter with keeping the children in state). I restricted my children from moving out of my metro area.  You certainly can’t rely on a letter from the BPD if she takes the kids to another state.  Authorities in the other state CAN enforce things (depending on the state) if they are presented with a court order/document.  It’s doubtful they would enforce anything by showing them a un-notarized, written letter.

Thirdly, realizing that all BPD situations are different, I have been through three court proceedings and every time was surprised at how much my exBPDw was way ahead of the game in terms of knowledge of the law. (and knowledge of laws in another state/country.) Fortunately, I had a high-conflict L who made me aware and keep things on the right track.   Every state has different laws, and with that said, I just want to ensure that what documents that were left to you will hold up in court.  (1) Was the letter stating that you have primary custody dated and signed?  I assume it was, but it’s worth mentioning. In my state, the only valid legal document that is recognized by the court (and I underline INVOLVING CHILDREN) is the divorce settlement decree. You can show letters and emails to plead your case, but in my state, it’s not a legal decree. Nothing else matters except a court doucment when it comes to enforcement involving children.  The letter from the BPD could later be argued that it was written and signed under duress. Especially so if there were no witness signatures. Again, the legal standard for what’s acceptable has a high bar when it comes to custody and children's rights. (2) You mentioned, “She didn't even fill out all the paperwork right.”  This to me is a red flag.  It could possibly mean that her Petition is not valid regardless of her residency.  I don’t want to be an alarmist here, but you can’t assume the BPD is not aware of what was done. (3) You might want to see if there is a Social lawyer service in your city that offer free consultations….or ask your L buddy these questions. Especially the issue of taking the children out of state.  Granted, all of this might not be news to you, but just want to keep things on a playing level field for your own protection and the protection of your children.

I hear where you are coming from TOTALLY... .

In the state of SD, there is set of rules that you are supposed to follow called the "South Dakota Parenting Guidelines".

https://ujs.sd.gov/uploads/pubs/UJS%20302%20-%20South%20Dakota%20Visitation%20Guidelines.pdf

I can nearly quote every section of SDCL involving divorce separation and Child custody. My BPDw doesn't concern herself with this and does not know the laws. She does however think she knows everything. I believe she may know more than what she lets on.  Her wanting time with the boys is more because what family she does have, have really brow beaten her over abandoning them... .It's so she can say, "see, I'm a mommy"

She has not even gotten a job since moving, so she has no means to take care of 3 children.

As far as the paperwork, the clerk of courts told me to just fix it, because it wouldn't hold anything up with the courts... .this state is supposed to be 50/50 when it comes to custody stuff, but everything is still truly set up in favor of the female. I have done everything and provided 100% of their support for the last 10.5 months. She has not paid any support. SDCL, requires that child support be paid even if there is no child support order in place. She's likely to lose her drivers license if she enters the state and the courts enforce the laws.

The way she left, she could actually be brought up on 3 Class 6+ felonies, and a class 1 misdemeanor. But of course, unless you are male,  the states attorney normally will not prosecute these. This was told to me by the clerk of courts.

[DivDad]

For now, my only to cents is this.
The focus is on your children. That is your primary concern.  Not the BPD.

You have to protect them.  Everything else is secondary.  And will eventually be settled in court.

Petition to have the children remain in your metro area... .and let the rest fall where it may.

[ForeverDad]

Possession is 9/10 of the law.

Possession is 9/10 of the law... .until there is a court order in place.

Years ago I faced that dilemma.  My ex had blocked me from seeing or even talking to my preschooler and the police were most unhelpful.  I asked them to accompany me, they said No, not until I had a court order in hand.  But when I asked what they'd do if I went and she called them, they said they'd come rushing.  Since I didn't want to get arrested, as she would surely demand, I waited for the court order.  It took 3 months, quite hard but I feared jail even more.

She may want summers and every Christmas, but that is a bit too much.  First, courts usually set a schedule where parents alternate holidays.  You can follow their lead.  You can pick the major holidays such as Thanksgiving, Winter Break and Spring Break and alternate them.  One year you get Winter break and she gets the others, then the next year she gets Winter Break and you get the others.  As for summer, she can't have it all.  You should be able to reserve at least 2-3 weeks for you to have a summer vacation too with the kids.  Also, be sure to have the order state that the kids are returned at least a week before school starts so that the kids are settled in and prepared for school.

Most schools have 10-11 week summer breaks.  That would mean she would have at most 7-8 weeks, so it won't be as long as you may think.  (Also, decide how the other big holidays, Memorial Day, Independence Day and Labor Day would be handled.)

It is possible that after some time with her in the summer that she'd be willing to send the kids back home to you.  Might depend on how much her family would care for them while technically with her.  You might want to ponder whether you want her family to step in or not.  That might fall under the concept of "Right of First Refusal" where you would come ahead of her family if she tried to farm them out.

[udunnome81]

Just to make it easy and get it signed, I offered every other Christmas and ever other summer alternating years, and she refused this. The thing that gets me about all of this is she has NO family. She has NO job, yet she thinks she can support 3 children. More than that every time she brings it up, it't not a matter of what is best for the kids. It is her saying that she is "entitled" because she's "still their mother".

I am starting to get very anxious. Court on the 21st and she told my son that she is coming for his birthday on the 18th. This will be (+1 day) 11 months since she abandoned us.

My oldest, who's birthday is on the 18th is pretty upset with her. After she told him, he got off the phone and said, "what if we already had plans on my birthday? She can't just pop in and out of our lives whenever is most convenient for her!" Then he was concerned that she is coming for his birthday when she has missed his brothers' birthdays. He is worried that they will hold it against him, that she is coming for his... .

[DivDad]

How old is your oldest?   The S who has a BD on the 18th.

[ForeverDad]

As I thought, I suspect she can't handle an entire summer without additional support.  No, not from you, as the parent with majority time you almost certainly won't have to provide child support.  Perhaps not even short term spousal support or alimony since she left the kids behind and hasn't made much contact.

As I wrote earlier, probably she will ask for more time than she will actually utilize.  She will want to look good on paper but may not try to take advantage of it all.  She may want the entire summer but give them up after a short while.  Hard to say precisely what she will do.  Rather than alternate the summers, I think it best to split the summers.  First, that way you would get 2-3 weeks for vacation time and also have them back in time to prepare for school.

Some members here have considered their ex can't handle too long with the kids.  Since there is distance apart and financial costs with travel back and forth, you can't have frequent exchanges.  Maybe she can handle a few weeks earlier in the summer and a few weeks later on?

Don't fret overmuch.  You do need to stand up for yourself and for the kids' welfare.  Don't doubt your good judgment or wisdom as a reasonably normal parent.  Especially this:  Don't weaken your boundaries in an attempt to appear overly fair.  That is our greatest weakness, we want to be so very 'fair' that we Gift Away far too much.  You've heard of moms who are Mama Bears protecting their kids?  Well, you have to be Papa Bear protecting your kids.  If you think she shouldn't get her every summer demand, then state why to the judge, that you need your summer vacations, that the kids need to be back in time to settle in for school, etc.  You are not mean if you do that.  You are standing up for yourself.  Got it?

Often the pwBPD makes complaints and demands.  Court is used to bickering and squabbling parents.  If you present the court with practical solutions as the reasonably normal and care-giving parent then it is likely to concur, at least with most of them.  You may not get everything you seek, but you'll get a lot.  And that's done by determining what the most important aspects are.  Sure, you can let her win some minor points, just stand firm for what you see as important for the kids and yourself.  She might fight tooth and nail for some minor matter, let her win it as long as the more important stuff gets adjudicated your way.

LivednLearned and David both reported that their judges yelled at them a lot and then awarded them most of what they wanted and needed.  The court made a show to appease the disordered parent (and avoid an appeal) yet the 'wins' for the other parent didn't amount to much.  So sometimes our motto is, Better to get lectured and yet still get most of what we need.

[udunnome81]

How old is your oldest?   The S who has a BD on the 18th.

He will be 12 on the 18th.

[udunnome81]

As I thought, I suspect she can't handle an entire summer without additional support.  No, not from you, as the parent with majority time you almost certainly won't have to provide child support.  Perhaps not even short term spousal support or alimony since she left the kids behind and hasn't made much contact.

As I wrote earlier, probably she will ask for more time than she will actually utilize.  She will want to look good on paper but may not try to take advantage of it all.  She may want the entire summer but give them up after a short while.  Hard to say precisely what she will do.  Rather than alternate the summers, I think it best to split the summers.  First, that way you would get 2-3 weeks for vacation time and also have them back in time to prepare for school.

Some members here have considered their ex can't handle too long with the kids.  Since there is distance apart and financial costs with travel back and forth, you can't have frequent exchanges.  Maybe she can handle a few weeks earlier in the summer and a few weeks later on?

Don't fret overmuch.  You do need to stand up for yourself and for the kids' welfare.  Don't doubt your good judgment or wisdom as a reasonably normal parent.  Especially this:  Don't weaken your boundaries in an attempt to appear overly fair.  That is our greatest weakness, we want to be so very 'fair' that we Gift Away far too much.  You've heard of moms who are Mama Bears protecting their kids?  Well, you have to be Papa Bear protecting your kids.  If you think she shouldn't get her every summer demand, then state why to the judge, that you need your summer vacations, that the kids need to be back in time to settle in for school, etc.  You are not mean if you do that.  You are standing up for yourself.  Got it?

Often the pwBPD makes complaints and demands.  Court is used to bickering and squabbling parents.  If you present the court with practical solutions as the reasonably normal and care-giving parent then it is likely to concur, at least with most of them.  You may not get everything you seek, but you'll get a lot.  And that's done by determining what the most important aspects are.  Sure, you can let her win some minor points, just stand firm for what you see as important for the kids and yourself.  She might fight tooth and nail for some minor matter, let her win it as long as the more important stuff gets adjudicated your way.

LivednLearned and David both reported that their judges yelled at them a lot and then awarded them most of what they wanted and needed.  The court made a show to appease the disordered parent (and avoid an appeal) yet the 'wins' for the other parent didn't amount to much.  So sometimes our motto is, Better to get lectured and yet still get most of what we need.

The only family my xBPDw has near her is a cousin, who is a known drug addict, and distribution agent. The county where they live is one of the poorest counties in the United States. The Sheriff there can't carry a gun because he has been convicted of felonies related to drugs... .but they keep electing him. I don't want them anywhere around that kind of stuff... .

I am working hard to make sure that I remain calm around her when we go to court. Using essential oils to help keep my anxiety down. (peace and calming & liquid Xanax... .)

[DivDad]

As an FYI, some states require mandatory mediation if children are involved. Seems your state does not.  And to reiterate, on the 21st, I would ask the judge to stipulate that the children cannot be removed out-of-state unless both parents are in agreement.  Explain her absence, etc.  You want to keep all future court orders, etc. within your state laws.   Her residency might change in the future and you have to protect the children.

[livednlearned]

To recap and make sure I'm following 

Your ex left you with the kids 11 months ago to be with someone else in another state
She had you served 7.5 months after she filed. The service date is when her petition became active.
The petition has a mistake in it that you have fixed by requesting a hearing (on Aug 21)
You don't currently have a decree or custody order, but you do have a letter from her stating she gives you primary custody.
You've been following SD parenting guidelines, except for the 2 week vacation because she is out of state
She talks to the kids every day and you have helped make this possible
She has not returned to see the kids for the last 11 months
She has no family in the other state
She has no job
She is living with another guy (?)
She's asking for every summer and Christmas, and has rejected every other year
She hasn't paid any child support (SD parenting guidelines says she should)

What do you plan to ask for in that hearing? It sounds like you will be representing yourself?

The thing that gets me about all of this is she has NO family. She has NO job, yet she thinks she can support 3 children. More than that every time she brings it up, it't not a matter of what is best for the kids. It is her saying that she is "entitled" because she's "still their mother".

She can only think in very impulsive, needs-oriented ways because of the disorder. This limits a lot of cognitive processing that you and I take for granted. Managing day-to-day realities is very compromised when you are riding waves of emotions with no way to regulate them. Something complicated like a custody order will push her capacities to the limit (they do for many of us, BPD or no) so there will be erratic and sometimes nonsensical moves that make no sense, yet you still have to respond to them because they involve legally protecting your kids.

Problem solving becomes extremely difficult and what does get decided is usually tragically short-sighted. She may encounter moments of self-reflection, but she veers away because the shame is too intense to process without skills to help regulate intense emotions, especially when her needs-seeking behaviors are morally questionable (e.g. having an affair, abandoning her kids).

I am starting to get very anxious. Court on the 21st and she told my son that she is coming for his birthday on the 18th. This will be (+1 day) 11 months since she abandoned us.

This is complicated because you want to create some emotional safety for your son on his birthday, not to mention the other kids. How about a message along the lines of, "You want to see S12 to celebrate his birthday and I want to make sure you have that time together. How about we arrange for you to see all three kids on the 19th. You can celebrate all of their birthdays, seeing all of them at the same time, and make it easier for them to share in this time with you, equally."

Then let S12 have his birthday on his terms, not worrying how his siblings will feel that he gets a birthday visit when they don't.

you can't believe what you hear from the Clerk Of Courts... .

Clerk of Courts can't give legal advice. They may know as much as a good L, but they don't have law degrees and aren't licensed to practice law.

The way she left, she could actually be brought up on 3 Class 6+ felonies, and a class 1 misdemeanor. But of course, unless you are male,  the states attorney normally will not prosecute these. This was told to me by the clerk of courts.

The current trend is toward what's best for the child. Not to defend the family court system, which nearly destroyed four years of my life, but figuring out who is the fit parent is pretty tough. Which is why we're here, to share collective wisdom about how you go about showing that you are the fit parent, able to focus on what is best for the kids.

Try not to worry about male/female bias because that kind of thinking doesn't give you a goal, strategy, or tactic, all of which you need to keep your kids emotionally safe. Most states have adopted the "best interests of the child" standard and that is where you should put your focus.

SD actually got a B- grade for shared parenting (zero states received an A) in one study. 

That puts you in a state that is better than 43 others for getting a fair shake.

Show up at your court hearing with the love for your kids coming through every word, sentence, and action. They were abandoned by their mother, a tragic form of trauma that has devastated them and created what will likely be a lifelong wound to heal. You want to focus on what is best for them, and would like to take cautious steps. Propose a solution and have consequences for non-compliance. "I ask the court that I am granted primary physical and sole legal custody based on the status quo of these past 11 months, to keep the kids in an area in which they have friends, family, and a secure and safe home. They start school in a few weeks and are enrolled in extracurricular activities, and after the turbulence of the last year, are finally beginning to settle into a set routine in familiar surroundings. It will take them many years to heal from the confusion and sadness when their mom left."

Ask for these things, and then ask that mom work to regain trust in a safe and graduated way. "I ask the court to set up a temporary parenting plan in which BPDmom comes to see the kids once a month from Sat at 10am until Sunday at 3pm.
And based on therapist recommendations which I have here, to have 3 nightly phone or Skype conversations between 7-7:30pm. If there are scheduling conflicts, we can make those arrangements 48 hours in advance by email."

"Once we establish a schedule of successful visits, BPD mom can petition the court to increase this visitation contingent on a demonstrated history of consistency and adherence to the schedule."

Something like that.

We don't know all the details and no one here can give you legal advice. We can only share what worked for us, and how to focus on keeping the kids safe in an adversarial legal system that seems woefully unequipped to handle mental illness in custody cases.

Last... .like DivDad wisely said, make sure you insist that the ids cannot be removed out of state unless both parents agree.

Usually, and at least in my state, once a custody suit is filed, abduction laws go into play because a parent is not supposed to remove kids from the state where custody was filed without express permission. That gives you some legal protection, but it's always good to double check how things work where you live, and ask for the maximum protection by making things explicit in your order. 

[udunnome81]

To recap and make sure I'm following 

Your ex left you with the kids 11 months ago to be with someone else in another state
She had you served 7.5 months after she filed. The service date is when her petition became active.
The petition has a mistake in it that you have fixed by requesting a hearing (on Aug 21)
You don't currently have a decree or custody order, but you do have a letter from her stating she gives you primary custody.
You've been following SD parenting guidelines, except for the 2 week vacation because she is out of state
She talks to the kids every day and you have helped make this possible
She has not returned to see the kids for the last 11 months
She has no family in the other state
She has no job
She is living with another guy (?)
She's asking for every summer and Christmas, and has rejected every other year
She hasn't paid any child support (SD parenting guidelines says she should)

What do you plan to ask for in that hearing? It sounds like you will be representing yourself?

She can only think in very impulsive, needs-oriented ways because of the disorder. This limits a lot of cognitive processing that you and I take for granted. Managing day-to-day realities is very compromised when you are riding waves of emotions with no way to regulate them. Something complicated like a custody order will push her capacities to the limit (they do for many of us, BPD or no) so there will be erratic and sometimes nonsensical moves that make no sense, yet you still have to respond to them because they involve legally protecting your kids.

Problem solving becomes extremely difficult and what does get decided is usually tragically short-sighted. She may encounter moments of self-reflection, but she veers away because the shame is too intense to process without skills to help regulate intense emotions, especially when her needs-seeking behaviors are morally questionable (e.g. having an affair, abandoning her kids).

This is complicated because you want to create some emotional safety for your son on his birthday, not to mention the other kids. How about a message along the lines of, "You want to see S12 to celebrate his birthday and I want to make sure you have that time together. How about we arrange for you to see all three kids on the 19th. You can celebrate all of their birthdays, seeing all of them at the same time, and make it easier for them to share in this time with you, equally."

Then let S12 have his birthday on his terms, not worrying how his siblings will feel that he gets a birthday visit when they don't.

Clerk of Courts can't give legal advice. They may know as much as a good L, but they don't have law degrees and aren't licensed to practice law.

The current trend is toward what's best for the child. Not to defend the family court system, which nearly destroyed four years of my life, but figuring out who is the fit parent is pretty tough. Which is why we're here, to share collective wisdom about how you go about showing that you are the fit parent, able to focus on what is best for the kids.

Try not to worry about male/female bias because that kind of thinking doesn't give you a goal, strategy, or tactic, all of which you need to keep your kids emotionally safe. Most states have adopted the "best interests of the child" standard and that is where you should put your focus.

SD actually got a B- grade for shared parenting (zero states received an A) in one study. 

That puts you in a state that is better than 43 others for getting a fair shake.

Show up at your court hearing with the love for your kids coming through every word, sentence, and action. They were abandoned by their mother, a tragic form of trauma that has devastated them and created what will likely be a lifelong wound to heal. You want to focus on what is best for them, and would like to take cautious steps. Propose a solution and have consequences for non-compliance. "I ask the court that I am granted primary physical and sole legal custody based on the status quo of these past 11 months, to keep the kids in an area in which they have friends, family, and a secure and safe home. They start school in a few weeks and are enrolled in extracurricular activities, and after the turbulence of the last year, are finally beginning to settle into a set routine in familiar surroundings. It will take them many years to heal from the confusion and sadness when their mom left."

Ask for these things, and then ask that mom work to regain trust in a safe and graduated way. "I ask the court to set up a temporary parenting plan in which BPDmom comes to see the kids once a month from Sat at 10am until Sunday at 3pm.
And based on therapist recommendations which I have here, to have 3 nightly phone or Skype conversations between 7-7:30pm. If there are scheduling conflicts, we can make those arrangements 48 hours in advance by email."

"Once we establish a schedule of successful visits, BPD mom can petition the court to increase this visitation contingent on a demonstrated history of consistency and adherence to the schedule."

Something like that.

We don't know all the details and no one here can give you legal advice. We can only share what worked for us, and how to focus on keeping the kids safe in an adversarial legal system that seems woefully unequipped to handle mental illness in custody cases.

Last... .like DivDad wisely said, make sure you insist that the ids cannot be removed out of state unless both parents agree.

Usually, and at least in my state, once a custody suit is filed, abduction laws go into play because a parent is not supposed to remove kids from the state where custody was filed without express permission. That gives you some legal protection, but it's always good to double check how things work where you live, and ask for the maximum protection by making things explicit in your order. 

Thank you for everything all of you have said! The corrections that need to be made will be on the fly, the hearing is actually the initial hearing, and where she will be there it will be a contested divorce (instead of the default I requested). I found out on the 8th that she retained a lawyer. So going it alone may not be a good option. Lucky for her, she has no financial responsibilities like I do... .guess she can afford the attorney. I can't.

[livednlearned]

guess she can afford the attorney. I can't.

I could not afford my attorney either. It took me 8 years to pay off my legal debt, altho I suspect my case was on the higher end of high-conflict (my ex was a former trial attorney).

You cannot do this stuff easily by the book, by googling, calling clerks of court, chatting with lawyers. Sometimes in cases that are he-said, she-said, judges will look for technicalities and rule based on that. The technicalities are a big part of why you pay a lawyer. Plus, a lawyer will know the particular biases of the judge you are assigned. My judge was incensed by foul language, and my ex happened to send hundreds of emails calling me names. My L stood in court and began to read out every single instance of every time he emailed me one-word insults. The judge dropped his head in his hands and eventually said, ENOUGH. That was the most clearly emotional moment in all of our court hearings, and we had many.

Also, can you stand before a judge and suppress your anger? That's a big one. If you are likely to be triggered by what her lawyer says (which believe me, will set your hair on fire), get a lawyer if you can. In many courts, you will be called in contempt of court for eye-rolling, heavy sighing, shaking your head. Anything that shows you are non verbally communicating your disdain for the opposing lawyer or his/her client.

[ForeverDad]

At the least you need consultations with local family law attorneys.  Retainers can be high but at least some advice from them is far better than none at all.  If money is that limited, perhaps you can find one who will let you be in the driver's seat but agree to be "second chair" available for questions and periodic consultations.

Another thought, if you are able to retain majority time then the court will likely order child support for you.  Of course her attorney will say she can't pay CS because she's not employed but you can respond that the court ought to 'impute' what her income would be if she were to find work.  (You work, there's no reason for her not to work also.)

It's possible that her lawyer will aim for the stars and say she as Mother wants the children and wants child support from you because she can't work and care for the children simultaneously.  How would you counter that?  I presume all the children are school age, right?  Then she can certainly work and if work starts before school or extends after school then there are daycares if necessary that will address such concerns.

As for LnL's comment about her coming once a month or whenever for a short weekend, I saw that the timing would have included an overnight.  Where would mother stay that night, in a motel?  Would it be better for only day visits while she was in the area?  I worry that you'd agree to being shut out of your own home when she was visiting.  These are scenarios to ponder before the hearing, perhaps with a lawyer's inexpensive consultation.

Also, if the kids are complaining about daily phone calls with mother, then mention that to the court.  Most orders have standard boilerplate "reasonable telephone contact", court ought to see 2 or 3 calls per week as just fine.  You're not blocking, just keeping it within reason.  (One magistrate stuck me with daily calls from 8-8:30 pm.  That lasted for 3 years before another magistrate saw it as too much.  Imagine every outing, every movie theater, every gathering, every whatever, we had to stop and be available every day for mother's call.)

Final thought... .her lawyer will present her as a poor victim, a mother who misses her kids, etc.  Her lawyer might even say she, as Mother, deserves to raise the children.  (What are Fathers, lesser than Mothers?)   Her lawyer won't mention that she was the one who filed, she was the one who moved away, she was the one who left the kids behind, she was the one who hasn't provided support, etc.  It is up to you to explain the History... .you have consistently been the stable parent, consistently there for the children.

[udunnome81]

At the least you need consultations with local family law attorneys.  Retainers can be high but at least some advice from them is far better than none at all.  If money is that limited, perhaps you can find one who will let you be in the driver's seat but agree to be "second chair" available for questions and periodic consultations.

Another thought, if you are able to retain majority time then the court will likely order child support for you.  Of course her attorney will say she can't pay CS because she's not employed but you can respond that the court ought to 'impute' what her income would be if she were to find work.  (You work, there's no reason for her not to work also.)

It's possible that her lawyer will aim for the stars and say she as Mother wants the children and wants child support from you because she can't work and care for the children simultaneously.  How would you counter that?  I presume all the children are school age, right?  Then she can certainly work and if work starts before school or extends after school then there are daycares if necessary that will address such concerns.

As for LnL's comment about her coming once a month or whenever for a short weekend, I saw that the timing would have included an overnight.  Where would mother stay that night, in a motel?  Would it be better for only day visits while she was in the area?  I worry that you'd agree to being shut out of your own home when she was visiting.  These are scenarios to ponder before the hearing, perhaps with a lawyer's inexpensive consultation.

Also, if the kids are complaining about daily phone calls with mother, then mention that to the court.  Most orders have standard boilerplate "reasonable telephone contact", court ought to see 2 or 3 calls per week as just fine.  You're not blocking, just keeping it within reason.  (One magistrate stuck me with daily calls from 8-8:30 pm.  That lasted for 3 years before another magistrate saw it as too much.  Imagine every outing, every movie theater, every gathering, every whatever, we had to stop and be available every day for mother's call.)

Final thought... .her lawyer will present her as a poor victim, a mother who misses her kids, etc.  Her lawyer might even say she, as Mother, deserves to raise the children.  (What are Fathers, lesser than Mothers?)   Her lawyer won't mention that she was the one who filed, she was the one who moved away, she was the one who left the kids behind, she was the one who hasn't provided support, etc.  It is up to you to explain the History... .you have consistently been the stable parent, consistently there for the children.

I have been very concerned, however as of last night --- I spoke with the attorney and have retained his services. He is a family law attorney with a LOT of experience. Has had experience with BPD, in court.

My best man, and best friend since college, went to Law School with him, so he gave me a break on his retainer and he's been answering my legal questions (involving this situation), for the last 11 months. I am very happy to have retained his services. 

[livednlearned]

That's great you have an attorney!

I hope you'll keep us updated.

We learn a lot from what others go through here 

[udunnome81]

Friday, my udxBPDw went to the court, got an emergency temporary visitation order, showed up in town called and asked if I was going to meet her at the police station to transfer custody. I said, nope. She said I have a signed court order in my hand, I told her I don't have anything, but my fork in my hand, so... .

She did come over with the order, and I did follow the court order and let her take the boys. She did return them per the court order. Returned them at 5:55pm, on the 21st, the night before school started. She was having dinner with them around 11pm, and in bed around 3am then entire time she had them, so you can imagine how well that went over. (Oldest S12 birthday was on Saturday) So she really made him even more upset, blasting all his plans.

So when they came back, we had a small birthday, offered BPDw opportunity to stay for dinner and cake, but she declined and "acted" scared, like we would do something to her. Well around midnight, I got out the door for the 3hr drive to where the court is, as we had a hearing set for Tuesday at 10:30AM.

Well, first hearing was going to be dropped due to overbooking of the time frame... .

However, she was there with her lawyer & I was there with my lawyer, so we kind of mediated an interim stipulation agreement. SD, is pretty serious about both parents getting time no matter what.

So, I did maintain primary custody, and she is getting summers, and every other Christmas... .until a hearing or they decide to settle out of court. She has agreed to pay the state minimum child support for now, until a hearing. That is where it is sitting now.

[ForeverDad]

I think you did very well.  Did you figure out what her motivation was?  Is she wanting a divorce to free her up for new relationships?  Was she wanting to be Mother for public appearance or family pressure?

Does the stipulation include provision for vacations?  I know that's not a huge issue at the moment, but in time you may want to take the kids on some summer vacations.  On the other hand, it is very possible she may not take the entire summers, she may delay getting them or let them return early.  It may work out best for her to get two or three shorter visits spaced across summer.  Time will tell.  The good thing is you have a starting framework solidly in your favor.

[DivDad]

As a suggestion, I would have your L insist that all court orders, etc... .be given to him by your BPD Lawyer... .and not handed to you via  your BPD.

You don't know when the court order was given... .and no time to respond.  It also reduces face to face conflicts.

Too, it's better if your L tells you what you have to legally do... .rather than the BPD or her L.

[ForeverDad]

When I didn't have a lawyer the court always delivered the court papers by a deputy or officer.  When we first separated, my then-stbEx called and said she had gotten a protection order against me.  I didn't know whether to believe her since I knew nothing about it.  Since I had one against her first and she couldn't return to the house, she didn't come until she had a place to stay and she came with an officer for her personal things and our child.  The officer's presence was more than to keep the peace, we were both required to stay apart from each other unless an "officer of the court" was present.

One concern about your ex handing you papers is that you don't know for sure whether they're valid.  As has been said before here by one of our members, "I know she's lying if I see her mouth moving."