Custody Strategy - Can it Backfire?

[cleotokos]

Maybe I’ve read too much on the internet so hoping people who’ve been through the custody battle can chime in. I am just starting the divorce process which involves custody and separation of assets. I do not want my young kids (2 and 4) to have extended alone time with my ex. My lawyer is asking for supervised visitation. Can this make me look “unreasonable” to a court? My concerns are that he has a temper and is irresponsible. I have one photo of a bruise he left on my son’s arm putting him in time out. I would categorize the physical aspect as “manhandling” my son when he gets angry. Currently I am present all the time and I’m really worried about what will happen if he is alone with the kids for example an overnight visit. The internet gives the impression that courts won’t care much that he shouts at the kids over minor mistakes.

I have audio recordings of him claiming my daughter doesn’t need to see a doctor when she had croup at 1 year old, the kids family doctor have told me they don’t want him calling to make appointments because of the way he spoke to staff. My therapist reported him to CPS 2 years ago based on what I said in therapy but nothing came of it in the end.

Lawyer is asking for supervised visits until he attends anger management, therapy for his PTSD and parenting classes. I will also ask her about the possibility of “backfiring” but wondering if anyone here has thoughts? I’m not looking to limit his time with the kids at all, just want there to be witnesses present.

Edit to add: just over a year ago he called me home from work so he could “kill himself”. He was caring for the kids at the time. Is any of this “bad enough” that a court might grant supervised visits? Or will I look “unreasonable” for asking and end up with less custody than if I had been “reasonable”?

[weatherthestorm]

Hi Cleo, honestly I don't know and this is not something I have dealt with. My situation is very different, what I would say that I have learned is that if you are concerned about your kids and have legitimate reason to, trust your gut. My stbEX is uBPD and has accused me of abuse to her and our children and is using that to gain an advantage in the settlement of custody, support and assets. She has threatened to have the courts interview our kids so they can say I have been very rough with them and have hurt them. I am not concerned that they will say this, but I refuse to let her bring our children into our legal mess. So I am negotiating the best I can out of court for a more fair split.

Whatever you decide I wish you luck. I am sure there are others on here with better advice on this subject.

WTS

[PearlsBefore]

IANAL...obviously.

I have audio recordings of him claiming my daughter doesn’t need to see a doctor when she had croup at 1 year old, the kids family doctor have told me they don’t want him calling to make appointments because of the way he spoke to staff. My therapist reported him to CPS 2 years ago based on what I said in therapy but nothing came of it in the end.

These won't be worth very much in a Family Court, so far as my experience suggests. The first one he can easily play off by saying it was just his opinion because he believed she had something else...and croup is not typically very serious. The second one makes him sound like he's a jerk - but since it doesn't involve the children, just other adults, it won't do much to impeach his character in raising the children. The third one is not worth bringing up because he'll instantly undermine it by pointing out that CPS/Therapist were reliant solely on you...so it still ends up being your word against his. You're better to "skip the middleman" and just give your own evidence without bringing the CPS/Therapist into it.

Or at least that would be my strategy, in your shoes.

[cleotokos]

Thanks PearlsBefore, this is what I am afraid of. Courts deal with much, much worse on a daily basis and although this stuff is tough for me and my kids to live through it's "nothing" compared to what they see. I think the only "real" evidence I have is a photo of the bruise from 2 years ago and him saying it was "nothing" over text, and the suicide threats because the police were called. I am not comfortable with him having even 24 hours alone with the kids and if I'm risking that I'm not sure it's even worth going through with divorce. Currently he is never alone with them more than an hour or two, so why would I put them in a situation that's probably going to be worse for them? Although her law firm seems very collaborative, my lawyer seems inexperienced and when I ask what she thinks she just says she can't predict what the courts will decide.

It's frustrating because how can somebody who's not even allowed to call the children's family doctor care for them effectively? So much of what he does is in the grey area, very rarely does it cross over into the physical and it is done in a way that it can always be claimed to be an accident (like him playing rough with my son when he should know that obviously he is about to get hurt. Then my son says "you hurt me daddy" and he says "no I didn't"...gaslighting a 4 year old already). I am not leaving my son alone with him so he can do these same type of things with no witnesses! Forget it.

[alleyesonme]

Thanks PearlsBefore, this is what I am afraid of. Courts deal with much, much worse on a daily basis and although this stuff is tough for me and my kids to live through it's "nothing" compared to what they see. I think the only "real" evidence I have is a photo of the bruise from 2 years ago and him saying it was "nothing" over text, and the suicide threats because the police were called. I am not comfortable with him having even 24 hours alone with the kids and if I'm risking that I'm not sure it's even worth going through with divorce. Currently he is never alone with them more than an hour or two, so why would I put them in a situation that's probably going to be worse for them? Although her law firm seems very collaborative, my lawyer seems inexperienced and when I ask what she thinks she just says she can't predict what the courts will decide.

It's frustrating because how can somebody who's not even allowed to call the children's family doctor care for them effectively? So much of what he does is in the grey area, very rarely does it cross over into the physical and it is done in a way that it can always be claimed to be an accident (like him playing rough with my son when he should know that obviously he is about to get hurt. Then my son says "you hurt me daddy" and he says "no I didn't"...gaslighting a 4 year old already). I am not leaving my son alone with him so he can do these same type of things with no witnesses! Forget it.

I think the suicide threat is your best argument against him. No matter what his reason was for that threat, it could definitely be a red flag for the court in terms of his mental stability. And if he "lost it" because he couldn't handle the kids, then that's even better for you.

As for the way he treats the front desk at the pediatrician's office, I do think you could use that indirectly as part of his "pattern of behavior" of instability. This may not be your heaviest hitter, but I think it's worth keeping in mind as the process unfolds.

[ForeverDad]

Courtrs often apply a limit to the age of incident.  Roughly I think incidents within the past 6 months before filing get the most attention.  Older than that and it gets a bit iffy, probably those incidents are better used as demonstrating patterns of behavior.  Likely there is no strict rule, I just recall my magistrate cut me off at six months as I was working myself backward through time.

Courts don't care much about hearsay, where there's vague "he said..." and "she said..." claims without documentation of specifics.  That's where documentation comes in.  If you have dates, times, locations, witnesses, etc then the court will perceive your reports are more credible.

It appeared to me that I had such a strong case, the whole of it was simply massive, or so I thought.  But court took it apart piece by piece and of course many of the smaller incidents were discounted as not rising above the bar for abuse or being actionable.  Don't let that discourage you but be aware of the court's probable perspective and way of judging.

It's almost like court expects every couple to arrive at court claiming abuse, conflict, raw emotions on their sleeves and general mayhem.  So they ignore a lot of it as short term problems that they hope will diminish over time.  For many splitting couples, it does.  It's those with substantive dysfunction, our PD cases, where the obstruction and conflict doesn't stop.  Your task is to ensure the court sees the issues as deep and you as the struggling but problem-solver parent.

When I read your list of evidence, I didn't see anything wrong with your overall approach.  In my case, my lawyer never sought to limit my spouse to supervised visits.  (Long story, for another day, let's just say it's hard to get a mother limited to supervision.)  Yours does want to seek supervised.  Even if some of the behaviors aren't normally "actionable", some of them are.  Put it all together and it does indicate supervised status is appropriate.  At the least it says you're trying to protect your children.

A warning... when he gets a lawyer, that lawyer will try to get you to minimize the danger.  For example, his lawyer may ask whether there are times you aren't afraid.  If you say sometimes, then the lawyer may turn to the judge and say, "She's inconsistent, she can't be sometimes afraid and sometimes not."  Your lawyer can provide answers to such sneaky questions, such as "I always have some level of fear now, I never know when the other shoe might drop."

[livednlearned]

I do not want my young kids (2 and 4) to have extended alone time with my ex. My lawyer is asking for supervised visitation. Can this make me look “unreasonable” to a court?

I don't see why you would be considered unreasonable for asking.

Your lawyer is suggesting ways that dad can demonstrate he's ready for the responsibility. A judge may think, "That sounds reasonable. Let's do that so we have some eyes on this family since the evidence seems lean."

Then you let your ex demonstrate he is motivated live up to his responsibility by signing up for classes and attending them promptly.

You know how that's going to go ...

You may have to white knuckle it through some bad outcomes in court but stick to what you think is best for the kids and let the courts catch up to you and recognize that you know what you're talking about.

As long as you make efforts to foster a healthy relationship between the kids and their dad, it's ok (and reasonable) to insist on a safe relationship at the same time.

My case had some grey areas that we filled in with depositions, lab work, and a psych eval. You can always ask for what you think is best, and then ask the court to buy into whatever solution you think will help paint this picture for the judge. "We are asking for supervised visitation while dad does xyz, after which we'd like to reconvene and make recommendations for a modification with more time."

[cleotokos]

Thank you everyone for your input. I saw a (possibly bad) lawyer years ago who advised me the courts don't care unless there's physical violence. I have gotten different legal advice and encouragement of my therapist since then but it still sticks with me - was she just telling me the "hard truth"? I can't figure out why she said it (among other "advice" she gave that seems to be totally incorrect). Compound that with internet tales of abused women being framed as the real abuser and manipulator (which I know happens to men as well) and I worry that starting this process could make things worse for the kids. I have filed for divorce but have not served him yet so he doesn't know.

I've been reviewing publicly available cases and yes, emotional abuse is considered in our jurisdiction. It seems the courts often view the parents separating as solving the issue of one parent emotionally/verbally abusing the other in front of the children. I do have texts of him saying he intends to tell the children that I "took" them away from him if I initiate divorce, texts of him saying things like "we" (him and the kids) don't like me and I should move out etc. Things I think may be evidence he intends to try to sabotage my relationship with the kids - and needs to address his mental health issues. Yes, I know how that would go...he thinks he knows more about life than any doctor or therapist so he may go through the motions but I don't expect any real change.

Most of my "evidence" is at least a year old, much of it several years old. I started taking dates down after my first was born (2016), as that's when things started to get very bad. After the suicide incident he promised to seek help and so I did not proceed with divorce, I gave him another chance. He saw a psychologist twice who told him his paranoia was due to the strain of marijuana he'd been smoking. He had been losing touch with reality which I'd never seen happen with him before. That level of paranoia seems gone but he does cling to some beliefs that started around that time that I am passive-aggressively trying to sabotage him through insignificant things that normal people wouldn't even notice (ie. putting paper in the recycling bin sideways instead of vertically). Absolutely nothing has changed and there's been no improvement over the last year, things just continue to get worse. He has lately started a campaign to make me feel like I am totally unable to cook, like my food is so bad as to be inedible by anyone. (We've been together 13 years and he never had an issue with this before). He does this in front of the kids and if I can figure out how to describe this kind of subtle abuse effectively maybe that counts.  He will say I cook the food bad on purpose because I am "full of hate". It makes me feel like he's showing the kids that I can and should be disrespected.

I just hate doing any of this, I am worried the effect on my kids. They will be traumatized no matter what. I worry the effect on him too because he is NOT well mentally and I don't even know if he can be helped. Most of all I worry I won't be successful and he'll wind up with the kids alone in the evening and I don't think he is capable of supervising them properly.

[livednlearned]

I don't think he is capable of supervising them properly.

It's so hard for someone severely disordered (and using) to manage themselves, much less kids.

You may find that his threat/action ratio is 9:1, and even if he wins time with the kids, he'll find ways to relinquish responsibility. It seems to be anecdotally true of the disordered dads based on what others share here.

I think, too, sometimes lawyers are talking about the percentage that our cases will be home runs. Few of them are.

Some lawyers are trying to manage our expectations, because for most of us the percentage of win/loss will depend on how things unfold in court. Some of the variables are beyond our control. Like whether our attorneys are good litigators, have too many cases, specialize in family law, biases of the judges, etc.

Suicidal ideation and substance abuse are meaningful when it comes to parenting. The other stuff you mention may be considered supplementary but it's still relevant, especially as a pattern of behavior.

Ask for what you think is best. Once you get into the family law system, you're shining light on your family's situation and parts of your story will unfold in broad daylight, so to speak. Instead of thinking divorce/custody as one event, think of it as a story that is being told over time, this time with witnesses, some that you pay to get involved and some who are there as part of the family law complex.

I asked for sole legal custody in my temp orders and was told it wasn't going to happen. I didn't care. All our temp agreement said was, "This, this, and that matter is settled. Left outstanding is the issue of legal custody, which is 50/50 until the matter is presented before the court." And then it sat there until I brought it before the judge with a boatload of testimony and documentation to show why."

It took 4 years  but my ex was a former trial attorney and that took high-conflict to a whole other level that you won't likely experience.

No one punished me for asking for supervised visitation (which I didn't get), but they did agree to limited visitation and no overnights when it became apparent that my ex was disordered.

Keep posting and asking questions and wonder about things out loud, no matter how seemingly insignificant! Lawyers work for you. You're the boss 

[cleotokos]

Livednlearned, thanks. I am very scared due to the ages of the kids that 50/50 custody while I work on fighting for more will not be enough to protect them. I can't imagine them in his care for 24 hours, let alone 3 or 4 days. He sometimes drinks in the evenings (making him act more like a bully particularly towards my son) and he is an extremely heavy sleeper, I'm worried he would not wake up if they needed him in the night or in the morning (I have always been the only one to wake up at night/mornings with them).

I do think he loves the kids very much and would fight to be in their lives as much as possible. I don't think he's one of those who would relinquish any time with them. He is plenty happy to relinquish financial responsibility though. I was also told (by the first, possibly bad, lawyer) that a judge wouldn't care about marijuana use.

I just read a first-hand account written by someone with BPD about what it feels like to split someone and thought - WOW! That really seems likely to be what's happening. He seems to go in cycles, he'll become agitated for days, then aggressive towards me verbally, emotionally, with his body language, trying to start some kind of fight. Eventually it works (though I try to resist) and there's some type of drama, I finally stand up to him in some way, and we have it out. Then in the following days or weeks he shrinks back and behaves meekly, though he never apologizes or admits he did anything wrong - always maintains I am the cause of whatever happened. Then he comes out of that phase and acts "normal" again, sometimes for many months. He keeps all his thoughts and feelings private so I have no idea what he is going through at any time. He's now in the "normal" phase after recent events and it's hard to take action when he's being nice enough (which honestly isn't even that nice anymore).

His mental health is so far beyond what I am equipped to deal with. I think you're right that this is a process - my lawyer is asking when is a good time to serve him, but I think I would not like to rush with this. I want to have confidence in my "evidence". It is also hard for me to be motivated to gather the documents needed and send them to her - part of me feels I'm betraying him. I think maybe a good plan is to prepare everything now, and when it gets bad again (because it will) then it is all in place and ready to go.

[worriedStepmom]

Your L could also ask for a clause that prohibits both of you from drinking when with the kids or within 24 hours of when you have them.  (One of my friends had this.)

Is 50/50 the standard in your jurisdiction?  Most places have a "standard" custody format that they use when parents don't agree.  In mine, it is 60/40 (basically, one parent gets EOW + one night during the week and 30 days in the summer).  In many places, there is a different standard for kids under 3 also.  So just because your ex might ask for 50/50, that doesn't mean he is likely to get it.  It depends a lot on where you live.

Right now, document who does what.  Use an online calendar or a spreadsheet and mark who gives baths, who feeds the kids, who puts them to bed, who picks them up and drops them off at day care, etc.  Mark the exact times that your H is alone with the kids (you out of the house) and estimate how often he is interacting with them at home (i.e., does he play with them or is it your job to keep them from getting underfoot while he watches tv?).  This is useful documentation as to who is an involved parent.

As to your other evidence - your L should be brainstorming ways to make it relevant.  For example, you can ask in the court documents that H provides a plan to get medical care for the kids if necessary given that he isn't allowed to call the pediatrician's office.

[livednlearned]

Livednlearned, thanks. I am very scared due to the ages of the kids that 50/50 custody while I work on fighting for more will not be enough to protect them. I can't imagine them in his care for 24 hours, let alone 3 or 4 days.

If you ask for supervised visitation, and there isn't enough there to fight for that, you at least move the negotiation way to that side. That way, his lawyer isn't likely to counter with 50/50 because then you start showing all the ways that his client isn't fit.

Something like:

You and your L: "supervised visits until ex does class 1, class 2, class 3 and drug testing"
H and his L: "no supervision, X # nights, my client will do the classes."
You and your L: "Pot, alcohol, anger. Let us know if you want graphic details."
H and his L: "no supervision, days only, my client will do the classes."
You and your L: "ex will do classes by day/date. Until then, 2 hours at a time, no supervision. Wednesdays and Saturdays. No drugs/alcohol 24 hours before nor during visitation. Upon completion of classes, we can revisit the schedule."

So you might not get the supervised visits but you could get something a little less scary, that puts the responsibility on your ex to rise to the occasion if he wants more time with the kids.

I know courts have a say in all this ... I also noticed that courts really want parents to solve their own problems. So sure, maybe the court doesn't care that your ex smokes pot, but the court does care that you have concerns, and here is how you want to solve it.

Ideally, the two lawyers will try to broker a deal that keeps you out of court. And the graphic documentation is leverage to persuade the opposing L that this is a better deal than what ex will get in court.

[cleotokos]

Livednlearned, can I hire you as my lawyer? 

All jokes aside, what you've written makes me feel a lot more comfortable. I haven't been through any kind of legal negotiation so I have no idea what to expect. There will be an opportunity for mediation between us and our lawyers before it would actually go to court, and I like the idea of that (not sure if this is typical for divorce cases or if that's specific to our jurisdiction?)

I'm realizing I'm leaving out all kinds of details to my lawyer because of things the first lawyer I saw years ago said...ie. that the court won't care about pot use. I think I need to communicate to her every little thing I can think of in case she finds it useful. I do think she's very intelligent and capable and probably has a plan but I wish she would ask me more questions and communicate the plan to me. Then again I'm hesitant because hourly rate....

worriedStepmom a no drinking clause would make me happy. My son understands what alcohol is and would be able to tell me if daddy was drinking alcohol. I worry that it would not be a good idea to ask him about it every time he's been with his dad. At some point it might appear I was putting the idea in his head or coaching him? I wonder how things would play out if he did come home and report his dad had been drinking? Yes, 50/50 is the standard where we are and it is not easy to budge that from my understanding. I have been told the age of the kids works in my favour but I'm not sure by how much, or if there's a different standard for their age, or what it is.

Our days are pretty much the same every day - ie I am the one to wake up with the kids, I help them brush their teeth and get dressed, he wakes up later and keeps them entertained while I work upstairs until lunch, he makes them lunch, then I take them for a nap. I'm done work while they're still napping then he and I both entertain them until dinner, he and I make dinner about 50/50, then I give them a bath and put them to bed. On school days (3x a week) he takes them to preschool and I pick them up. I wonder if this whole work from home situation so many of us are in has changed things in the court system? He really thinks he is a full time caregiver while I am working but it's not like that. They are upstairs frequently throughout the morning while I work and if I hear crying (happens multiple times a day when you're 2 and 4) I come downstairs to comfort them. I also do a lot of cleaning throughout the day, I clear and wipe the table after they eat, load and unload the dishwasher, wipe counters, do laundry. He doesn't do any of that, ever. I do my errands while they're at school or napping, very rarely am I not home when they're awake, if I am it's for one to two hours maybe once a week while I grocery shop (another thing he doesn't help with).

[CoherentMoose]

Hello.  Have you read Splitting by Bill Eddy?  It's a good primer on what may happen as you move on your plan to separate yourself from your partner.  Do you have a safety plan in case things don't go well?  Search in here and you'll find several comments discussing visitation restrictions as well as requirements for allowing more relaxed visitation rights.  Suggest you consider very limited visitation criteria initially with written "gates" moving towards relaxation of the restrictions with documented improvement in behavior.  Much easier to start strict and relax restrictions than it is going back to court to have additional restrictions installed.  That way the court sees you as a "Momma Bear" protecting her cubs to be sure of safety, but a Momma Bear willing to concede should behaviors improve.  Good luck. CoMo

[livednlearned]

I haven't been through any kind of legal negotiation so I have no idea what to expect. There will be an opportunity for mediation between us and our lawyers before it would actually go to court, and I like the idea of that (not sure if this is typical for divorce cases or if that's specific to our jurisdiction?)

The wheeling and dealing took me by surprise, too. Someone here once suggested discussing goals, strategy, and tactics with your attorney, but when I did that my attorney kind of patted me on the head. But the process of thinking that way did help me get my head around what role I was supposed to play. Lawyers are experts but you are the boss.

https://bpdfamily.com/message_board/index.php?board=10.0I think I need to communicate to her every little thing I can think of in case she finds it useful. I do think she's very intelligent and capable and probably has a plan but I wish she would ask me more questions and communicate the plan to me. Then again I'm hesitant because hourly rate....[/quote]

My lawyer was like that too. It took me a while to catch on and figure out how things work. I do think some lawyers are just head down, get the job done, and that can work out ok. But I also found that the more I understood, the more I could catch the important things falling through the cracks that were inconsequential to her but huge for me.

It seems like a good sign that she's recommending you ask for supervised visitation. My lawyer didn't like to overpromise because then it looked like she lost.

[cleotokos]

CoMo, I'm going to pick up that book, it looks very helpful. Right now I'm struggling with moving forward, because even if he is required to go through anger management and parenting lessons, I don't think it's going to do him any good to be honest. He claims to have been to anger management before (that would be prior to us meeting) and says it "doesn't work" (like he feels nothing works for him, no therapy, meditation, medication, anything). I'm worried he'll "go through the motions" but nothing will change with how he interacts with the kids. So even with documented change and thus increasing visitation rights I fear not much would actually change. Considering he can't even hold a job and has frequent conflict with people I think he's pretty low functioning, and it would come out in the parenting lessons etc so he might not be able to fake through it. I just hate the feeling of not knowing whether it's going to be my best case scenario or my worst.

livednlearned I do get the sense that my lawyer's allowing me to be the driver of this. I worry that she's not pushing me forward because she doesn't think I have a strong position. She asked me for financial documents which I didn't send and I haven't heard from her since - it's been about 3 weeks. Is this normal? Should she be following up? I haven't sent them because I'm just not sure I want to continue at this particular moment (I do have a year to serve him, so I want to take time to collect everything and think very carefully). I think she also does not like to overpromise, which I appreciate.

[ForeverDad]

My lawyer would tell me stories about prior cases...

One client had won his divorce case, but he didn't sign the final decree.  Lawyer called him and his stbEx answered the phone.  Yep, his client's will power failed or his spouse lured him back.

So I would think that if your lawyer doesn't hear from you as expected, your lawyer may wonder whether your determination to continue forward is weakening.

In my area there are the required Parenting classes at the start of the divorce.  If there are some serious abuse or behavioral issues then Anger Management may be ordered.  But you already know that it will have only as much impact as the effort the person puts into it.  Courts deal with people as they are.  If they shape up, great, but if they don't then court just adjusts its approach and moves on.  You need to have that perspective too.

[livednlearned]

She asked me for financial documents which I didn't send and I haven't heard from her since - it's been about 3 weeks. Is this normal? Should she be following up?

Some of them have insane, nearly unmanageable caseloads.

She probably also figures you're an adult, it's in your interest to send the docs, so if she doesn't hear from you it's because you're not ready to proceed.