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-   -   Currently have primary custody, should I settle custody 50/50 to avoid court?? (http://www.ottawadivorce.com/forum/f3/currently-have-primary-custody-should-i-settle-custody-50-50-avoid-court-18473/)

FirstTimer 01-03-2015 01:01 PM

Currently have primary custody, should I settle custody 50/50 to avoid court??
 
Hi everyone,

I have a question, what are my chances of me continuing with primary custody of our 3 year old son?

Here is the situation, finally going back to court on January 15th.

We both signed an consent order in September, that i would have primary custody of our son in exchange i give her a lump sum of money.

She is now wanting to go back to court to change it to 50/50 as she now says she was coerced into it.

She is the one who actually offered to give me full custody of him in exchange I help her out financially as she was given an eviction notice and she needs a break. *this is the second home, after she got evicted in June*.

Previously, we were in status quo 50/50 shared parenting.

My arguements against it
Best interests of Child.
1. Stable physical environment of child.
She had been evicted out of house in June, had her power and gas cut off a few times in past 2 months. Did not pay his dayhome in August and thus he had no daycare for that month.

2. Emotional well being of child.
She has been investigated by child services around issues with her daughter. *fighting* etc. It hasn't gone away, this past weekend, I was invited to dinner with them and half through, she got mad at her daughter on the way home and screamed at her and stopped her car on the freeway and told her to get out, all this in front of our son, I have this actually recorded. I told her not scream and she doesn't care really. Is that evidence? I would hope so.

3. Actual ability to take care of child. Her working hours are from M-T 2-8:30 PM, Friday 4:00 to 9PM and Saturday 12 - 5 and Sunday 12-5. It doesn't make sense for him to be shuttled around on weekdays. I pick him up at 5 from dayhome, and I am expected to bring him to her house at 8:30PM? That's not stability for him? Does anyone agree on that?

4. I'm the one that actually takes him on activities and such. Swimming, park, movies, dinosaur museum etc. I have photo journal to provide it.

5. Stable physical environment
I have the same house I've been living in for the past 6 years. I have a bedroom for him, everything. I don't have power cut off issues.

6. Emotional well being
I have been consistent with what I want with our son, I do not flip flop on my custody access.

The crazy part here everyone is she originally OFFERED FULL CUSTODY TO ME. My original thought was you know what, she was going to be evicted, I could let her get evicted then come after for primary as she can't even provide him a stable home but i thought hey, I will give her money i would have spent going after her anyways in court so why not just save her as well from being evicted in the best interest of the child.

Nope, as soon as she got the money, it was basically, I change my mind, i want 50/50 still.

Her argument:
1. Best interest that child is with her as well on a week on / week off basis. (I am not sure how this would work since she works weekly m-f 2-8PM and Saturday/Sunday 12-5 PM).

2. She said she was going to hire a nanny which fell through (it was a friend of a friend, that "I was going to pay for")

3. More importantly, she wants offset child support.

4. The money i gave her, she is now saying it's a loan. and it is paid off for the 4 months since September. (my child support for those 4 months equaled the amount of loan). Meaning that, even though I had him full custody, she was still entitled to full child support and since I "didn't" pay her child support, this would be payment in full.


Now i am thinking, what are my chances of winning in this case? it's going to cost me about 6 to 10K my lawyer said to go into special chambers. She is offering me 50/50 now or fight in court.

From a financial perspective and I know it's in her favor that she makes less than me, but her income is 28K, and her rent on her house is 2500 so you see why she wants child support.

Do i have a chance or is the court going to side with mom as always?

blinkandimgone 01-03-2015 02:18 PM

The court won't side with her because she's mom, the court will look at the best interests of the child which is having two involved parents.

The thing about trading money for your child, which is essentially what you did, there is nothing that says that mom having more time with the child is out of the question. Yes, it sucks that she was willing to give up time with the kid in exchange for money, but she probably did so knowing she could always ask and expect more time later.

If you had a lawyer who suggested this was a good idea, I would recommend a new lawyer ASAP. If you didn't have a lawyer I would recommend consulting one before making any more offers that will only serve to bite you in the ass again in the future.

FirstTimer 01-03-2015 02:41 PM

Lawyer didn't suggest the consent order. Mom was the one that asked for it.

Sorry, what was the dumb idea? The fact we signed a consent order giving me full custody? How does it make me look bad? Maybe I'm being ignorant here, she was going to be evicted and I could have let it happen and go after her for not providing a home as that is a responsibility of being a parent.

How does a judge not see it as flakey when you sign over full custody then serve me papers to want to say she was "coerced into it" less than 1 month later? The only reason it's being delayed is because we are going to special chambers this month.

My lawyer didn't object to it, as she said I got what I wanted.

So do you think then i should just settle to 50/50? The previous order before the consent order was an interim from 3 years ago and said I would have him 3 days per week till we go to court. However, the past 3 years. We never followed the court order, I never took her to court on it ( we basically had 50/50 time split) and was preparing to go to court for shared parenting as she refused to idea of shared parenting and in her words before, over her dead body.

So you see what kind of person I'm dealing with. Simply opportunistic.


Quote:

Originally Posted by blinkandimgone (Post 188549)
The court won't side with her because she's mom, the court will look at the best interests of the child which is having two involved parents.

The thing about trading money for your child, which is essentially what you did, there is nothing that says that mom having more time with the child is out of the question. Yes, it sucks that she was willing to give up time with the kid in exchange for money, but she probably did so knowing she could always ask and expect more time later.


If you had a lawyer who suggested this was a good idea, I would recommend a new lawyer ASAP. If you didn't have a lawyer I would recommend consulting one before making any more offers that will only serve to bite you in the ass again in the future.


Links17 01-03-2015 05:14 PM

This is an issue of legal technicality.
1. Once an agreeement is signed by 2 parties without any fraud and with legal advice the court WILL NOT overturn it because somebody had a change of heart. Was their independant legal advice for her? Was the change in custody homologated by the court (did a judge sign it)?



2. She would need to prove one of the above which i dont think she qualifies for.

3. Failing that she needs to prove a change in circumstance which there isnt.

The first step is not about best interests of the child. It is about the agreement and if its valid.

Rioe 01-03-2015 06:43 PM

She may be able to argue that she was under pressure to sign it. It may not have been pressure from YOU (ie, coercion), but she certainly felt that she had no choice but to agree to give you full custody so that she could get out of her financial bind.

It makes you both look bad. She sold her custody of the child to you for money, and you took advantage of her desperate circumstances and agreed to it. You kind of created a monster, to be honest. You bailed her out financially, which gave her the idea that you are a source of money. She's obviously incapable of paying the money back even if custody changes back.

Why not suggest that the custody go back to 50-50, but that the money you gave her to avoid eviction be considered CS paid in advance, not a gift. Treat it like the full custody you had for a while was a temporary arrangement while she got back on her feet. Tell her that based on how it turned out, you prefer not to do things this way, and that it won't happen again, so she should live within her means. If she can't get her act together and gets evicted, don't rescue her. Just offer to take the child full time for a while again.

As for her schedule, that sucks too but it is her problem. Try for a 2-2-5 schedule, that puts the child with her on her W-T days off. Maybe you can also slip a Right of First Refusal into the new agreement that puts your son with you while she's working on her weekend, instead of in a daycare.

Or, you could try to rely on a four month status quo of you having full custody and argue that it's not in the child's best interests to change it back.

FirstTimer 01-03-2015 09:11 PM

Yeah, I looked at that too, in order to prove coercion and this is coming from Links17's comment about the legal technicality of changing a signed contract.

btw It was signed off by the judge.

To nullify a signed agreement. She has to prove undue influence came from the other party aka me.

1. I created the situation (I did not, I've been giving her early child support for the past few years to pay for her phone, hydro, etc)
2. I created the agreement (which I did not as she approached me)
3. I threatened or pressured her into giving her no choice (again, she is the one that offered to me, I did not say give me full custody and you will get your lump sum, she approached me.)

It's like saying, I go to you and ask you to give me money as I'm late on my rent. I say you can have my car for 5K even though it's worth 20K. We sign and have a commissioner of oath swear on it. Does that mean the next day I go to the court house and say I signed it under pressure and therefore should get the car back? What is the point of a contract then? Pressure is normal, undue influence isn't.

This example is it being objectified to argue on the point of legal technicality, which in this matter is completely different.

I did what I did because I wanted my son in a stable home environment. I was sick and tired of the BS.

There were 3 options,

1. Give her the bulk amount and call it advanced child support for the next 4 months which at the end of the day does nothing for my child's need to for a stable home environment as this is just enabling the situation as it always has been.
Outcome = son is in unstable environment

2. Ignore her and watch her get evicted along with my son with nowhere to go. In order for me to even get custody of him then, i would need to apply into court etc...special chambers aka January 2015. etc. And who knows where he would end up being, shelter etc. To be perfectly frank, this was not an option, it's your own flesh and blood. Enough said. I can't imagine any parent waiting it out to see your own son/daughter suffer.
Outcome = son is in unstable environment

3. Give her the money, and take her offer. She gets out of debt, is not evicted and your son is now guaranteed in a stable home environment.
Outcome = son is in stable environment.

So I made the decision based upon the circumstances. I'm a solution based person and I chose the outcome that best favored our son. So let me know if I'm wrong here.

Correct, that is what she is trying to offer me now, 50/50 going forward. As for the money as CS paid in advance, that's non-negotiable according to her. She says that money has already been paid off since I have NOT been giving her CS since Sept-Jan even though I have had him full custody of him since then.
That is what she put in her affidavit.

And I doubt any judge would agree the loan is advance CS or maybe I'm wrong. Doesn't make sense to me.

As for her schedule, sorry to clarify.
She works Monday to Thurday 2-8PM and Saturday/Sunday 12-5PM. Her actual day off is Friday.

He is in Montesorri fulltime but she she drops him off there at 2PM and I get him at 5:30PM after work. I don't agree with having to drop him off at 8:30PM at her place every other week. We do homework, dinner and bath and then he needs to be in bed by then. Shuffling him for her schedule is not in his best interest. Anyone disagree here?

That is the main point my lawyer is arguing on, that she can't physically do week on week off because you have him those times already when she is working since she started her job.

The main thing is I want to continue with primary residence with me for his schedule and stability.

What do you think my chances are of keeping it as it is and are my reasons valid?

As a funny aside, since life shouldn't be all serious.:D It was serious at the time but funny now. A week after it got signed by the judge and filed to law clerk. She calls me and tells me I used the wrong from, "change consent order" and not "consent order". Therefore, the old order stands and she has full custody. As well, she will be filing assault charges on me to lock in the full custody.

I came to the court house, asked if the old order stands, clerk says no, the order you have is valid, mentioned what happened, he laughed and said this isn't Law and Order, the judge signed it! and if you are worried, he took the original document, put in "change" in front of consent order, stamped it and said give it to her. And btw, you can serve her as well documents to file for child support! Course I never used them.

Needless to say, the assault charges were never filed. I think she is waiting for the upper hand and she will file them.
Quote:

Originally Posted by Rioe (Post 188566)
As for her schedule, that sucks too but it is her problem. Try for a 2-2-5 schedule, that puts the child with her on her W-T days off. Maybe you can also slip a Right of First Refusal into the new agreement that puts your son with you while she's working on her weekend, instead of in a daycare.

Or, you could try to rely on a four month status quo of you having full custody and argue that it's not in the child's best interests to change it back.


Links17 01-03-2015 11:44 PM

I don't think you should agree to shared custody. It is just a money grab.

People who work evenings when children are home for school don't qualify for shared custody (i.e: week on, week off).

I would propose the following access:
2/3 weeks: Friday 8AM - Saturday 11AM

I think your case is very strong and I would't agree to shared custody
On a legal basis your case is strong, on a "best interests" basis your case is strong.

One key thing is that eventually she will get a 9-5 job and that might be grounds to change the custody arrangement depending on how the original consent was drafted (i.e: was it drafted to indicate that because she was currently UNABLE to share custody that you got full).....

Rioe 01-03-2015 11:59 PM

You want your son in a stable environment, which you believe he has now. Can you prove to a judge that his current environment (full custody to you) has been beneficial to him, and should not be changed? What has improved about his behaviour, etc , in the time since he stopped going back and forth all the time, at strange hours? How has the stability helped him? What supportive documentation could you present in court about it if you had to?

Your ex has to prove that going back to the unstable 50-50 schedule would be better for him than what he has now. That sounds tricky from what you describe. Normally, it's good for a child to have maximal access to both parents, but if going back to 50-50 means he won't see that much more of his mother due to her work schedule, you might have a good argument for an alternative. The alternative you present should have as much contact with her as possible, though, working around her schedule, such as her having him every Friday.

Franklin 01-04-2015 09:46 AM

She will lie in court bout all you say and make accusations against you. Judge will error on the side of caution and agree with there is a problem and only flip through all your evidence quickly without care and avoid making a decision leaving things for you to 2 decide on, schedule another expensive CC .
If you were self Rept or have the 10 or 30 grand you definitely will have a chance at sole.
Judge will look for you to pay for 2 homes so the child has 2 bedrooms all the time oh ya the mother too.
Now if you were the parent with all those problems Judge would give you EOW and call FRO. Go Self Rep and let the system screw itself. The more people that do will force the courts to clean up there act.
I know a guy who hasn't seen his son in 8 months all because his ex recorded him upset and swearing she also took a picture of a red bum as he smacked his son with a slipper. Police ran with the evidence Judge ran with the evidence. See how you do with your recording. They will probably tell you it is inasmissable . This guy has a sworn affidavit his ex makes the boy take cold showers with his clothes on and has been seen beating him with a clothes hanger. All ignored.

This all sounds terrible but the boy was well taken care of. This abuse word has lost it,s meaning. Unless your a man or have been a very dangerous mother remembering that the first 2 times don,t count for her.

standing on the sidelines 01-04-2015 10:06 AM

Quote:

Originally Posted by Franklin (Post 188606)
I know a guy who hasn't seen his son in 8 months all because his ex recorded him upset and swearing she also took a picture of a red bum as he smacked his son with a slipper. Police ran with the evidence Judge ran with the evidence. See how you do with your recording. They will probably tell you it is inasmissable . This guy has a sworn affidavit his ex makes the boy take cold showers with his clothes on and has been seen beating him with a clothes hanger. All ignored.

This all sounds terrible but the boy was well taken care of. This abuse word has lost it,s meaning. Unless your a man or have been a very dangerous mother remembering that the first 2 times don,t count for her.

smacking a child with a weapon isn't acceptable at all. Using a hand is one thing but hitting a child with an object is totally wrong. He deserved to be charged to the full extent.

I get the feeling that your buddy made the claims against the mother after he was charged with child abuse? If yes then it was just most likely a retaliation thing. Needless to say if both "parents" are abusing the child with weapons then the authorities should be involved and steps taken to protect the child before they use bigger weapons.

Being well taken care of means they have enough food, shelter and clothes. That doesn't mean that hitting a child with a weapon is okay.


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