Using the children attempting to change custody

[CoherentMoose]

Hello. 
My fiancé's  xBPDH is starting to tell the children they can decide who they want to live with when they turn 13.  Turns out he's purchased a house in another State and has told them he plans on moving there in two years and wants the children to move there with him.  He cannot afford to go the legal route so he's attempting to go through the children.  He's telling them how much fun they will have and how exciting it will be to move.

The children are girl 8 and boy 11.  From a legal perspective, our lawyer states the court has ordered where the children will reside and how custody will be shared (50/50).  In order to change where they live, both parents have to agree. 

He has limited financial resources, especially now that he's paying rent here and a house payment in another state.  That is why we feel he cannot go the legal route.  Plus, he would have to involve CPS to determine my fiancé is an unfit mother and that is doomed to fail.  He has to use the children and he certainly has proven he's willing to do that.  Whatever will get him what he wants. 

The children have started counseling; however, the xBPDH continues to tell them to never tell the counselor anything and they are afraid to open up.  The therapist appears to be good and I think that will change over time.  At least I hope it does.  We hoped that having the children in therapy would help mitigate him using the children but he seems focused on telling the children they can decide to live with him full time when they turn 13.  He also asks them which house they like better and he really wants them to choose his house when the time comes.

Question: 
  1.  Any advice on how to help the children stay out of the middle?
  2.  Any reference materials you would recommend?
  3.  Any tips on how to respond when the children ask if they have to choose?  We currently state the Judge has ordered them to live here and only the Judge can change the custody sharing plan and where the children live.
  4. Any recommended legal steps we should be taking?

As always, thank you for your time and help.

CoMo

 

[GaGrl]

I think people misinterpret the guidelines, thinking "a child can choose which parent they want to live with at age 13 (or 14)" when actually the guideline is that the judge will consider the children's wishes at that age.

Keep the therapy going, and perhaps have your lawyer send a cease-and-desist letter regarding his custody conversations with the children?

Are you learning about these conversations from your children? If so, it's good they are open with you.

[PeteWitsend]

I think people misinterpret the guidelines, thinking "a child can choose which parent they want to live with at age 13 (or 14)" when actually the guideline is that the judge will consider the children's wishes at that age.

...

This is correct; the children's choice is given weight at age 12, but it's not conclusive, and changing possession still requires a court order, i.e. your BPDXH will still need to file a suit for the change in possession.

If the facts still weigh in favor of leaving custody as is, or the kid(s) don't have a good reason for wanting the switch, the court may not order a change, even with the kids testifying clearly in favor of living with one or the other

What your xBPDh is looking for here, not only a change in possession when the kids turn 13, but basically taking sole possession at that point in another state is REALLY extreme.  I don't see any way a court would grant him that right, unless you were demonstrably abusive toward your kids or otherwise unfit to be a parent

[ForeverDad]

What your xBPDh is looking for here, not only a change in possession when the kids turn 13, but basically taking sole possession at that point in another state is REALLY extreme.  I don't see any way a court would grant him that right, unless you were demonstrably abusive toward your kids or otherwise unfit to be a parent.

Like in 007 movies, never say never.  But an ex trying to insert an out-of-state move into the mix should be more than a court would accept.

[Turkish]

Does your stipulation state that neither parent can take the kids out of state without written permission from the other parent? If so, I wouldn't give permission for even a vacation. Ours states that neither parent can even move out of our current county without agreement.

What do the kids think about what dad says? Mine are stable with local friendships at 9 and 12. I know that they wouldn't want to move away, from either parent as well.

[CoherentMoose]

Thanks all for the replies. 

Does your stipulation state that neither parent can take the kids out of state without written permission from the other parent? If so, I wouldn't give permission for even a vacation. Ours states that neither parent can even move out of our current county without agreement.

Turkish, her divorce decree stipulates each parent must notify the other when taking the children out of state and include dates and contact information.  The decree also states the children cannot be taken out of the country without the other's permission. So for us, it's  notify for out of state, permission for out of country. 

The recent court action we just initiated and finished further clarified vacation rules and it was very clear on responsibilities.  He had asked for three two-week "vacations" during the year.  The court said only one allowed, and that vacation had to be during the summer to not impact the kids schooling.

What your xBPDh is looking for here, not only a change in possession when the kids turn 13, but basically taking sole possession at that point in another state is REALLY extreme.  I don't see any way a court would grant him that right, unless you were demonstrably abusive toward your kids or otherwise unfit to be a parent

PeteWitsend, we agree with your assessment.  It's very highly unlikely he can win legally; however, he will try to emotionally manipulate the children.  He's already trying in fact and we're preparing our lawyer to issue the cease and desist letter.  Having the children in therapy should help. 

Are you learning about these conversations from your children? If so, it's good they are open with you.


GaGrl, yes, the children are discussing the issue with my fiancé.  She has a good relationship with them and they seem to feel safe with her. 

Thanks again all for your time, help, and advice. 

Be well.

CoMo

[ForeverDad]

My final decree didn't state much about the ins and outs of parenting time but evidently the court generally followed its Parenting Guideline posted online.  They stated 3 weeks per calendar year of additional or extended parenting time rather than vacation time, but a maximum of 2 weeks at a time.

Well, my ex contested in court that I was starting my vacations on my weekend and so my 2 week vacations were actually 16 days away from her if both the beginning and ending weekends were counted.  I was astounded that court agreed and ordered no more than 14 days away.

That order made me wonder whether it also would apply to my holiday if one immediately followed my vacation.  Judges and magistrates are allowed discretion in their decisions, so you can't guarantee an outcome if the spirit of the law differs from the letter of the law.

[BigOof]

Try reading or listening to "Divorce Poison." It has helped me a lot to understand and mitigate the alienating strategies.

[CoherentMoose]

Thanks BigOof. I have had that book for a year.  Time to open it up and read! 

Be well.

CoMo