Facing a big decision, Deal offered, Need advice

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up2itnow

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I apologize upfront for this long post but I want to provide as much information as possible.

Background.

In my divorce last year I screwed up and agreed to relocation because Ex was threatening me with a 16yro legal issue I never took care of, and work was pressuring me to transfer out of state. After what I agreed to sank in, I realized I had screwed up. I talked to an attorney and he encouraged me to go back and revoke the divorce by claiming coercion. We did, it went to an emergency hearing and the Magistrate accused me of perjury because at the end of the original divorce proceedings the Judge asked if I entered the decree of my own free will and I replied yes. Case was dismissed as frivolous and baseless, I got charged with attorney's fees and the Ex moved to MN with the kids. My atorney did little in court to argue the case, got shredded by the other attorney and then recommended I not appeal. End of Jan 2011.

My Ex was/is on probation for a DUI (.24 BAC), probation was transferred to MN when she moved. I received several reports from the kids that she was drinking there, which is a violation of probation. Then she moved a pot smoking, out of work, revoked license, 5x violent felon into the house. I had enough and called the police to do a child welfare check (June). Police report states that she admits to drinking that night and the kids in her care. I then sent the report to her PO and he brought her in for an 80 hour ETG UA. She came back clean but it was only just over 60 hrs since the drinking not the 80 claimed by the test proponents. Her PO increases the frequency of UAs to 4x a month, puts her on the color call, has her doing 2 random BAs, and has her go to relapse counseling, based on the police report I sent. 2 months later (Aug) I get a call from a common friend who says Ex called and was drunk. Shortly after she drops a diluted test, but goes back in next day and shows clean.

While kids were here for summer visitation ( June) Ex verbally agreed that the kids could move back to CO because they both wanted to return to their old friends, schools, etc. I was relieved because the kids wouldn't be around the drinking and the convict. I leased a house and began to transfer them out. 5 weeks later (Aug) Ex changed her mind saying "if the kids being there (CO) means that the child support amount is going to change then everything is off" via text message. I offer to continue pay current amount until next year but that wasn't good enough. She forced them to go back after visitation (Sept).

I contacted a new attorney (Aug) and started a case claiming endangerment with statute 14-10-129 (2)(d) because of the drinking and the violent felon (Aug). I asked for an emergency hearing and a CFI. Didn't get the hearing but I did get the CFI. The report came back (Oct) saying the kids should come back. Asked for a forthwith hearing but Ex's attorney wants 8hrs so we couldn't get it scheduled until the end of Jan. In the mean time, they are charging me with contempt because I took the kids to see a councilor and even though I informed the Ex of my intent to do so via text plus 2 calls and she said "whatever" never directly saying no; she is claiming she didn't give consent and there is nothing in writing except the text. The contempt hearing is conveniently scheduled a few weeks before the custody hearing so they can try and discredit me in the Magistrate's eyes again.

Current

My daughter (16yo) is having adjustment difficulties and hanging around a bad crowd. One of her friends broke into the house last month (Oct) and was arrested, she has frequent boarder line physical fights with her mom, and last week got in a fight at school and is suspended for 3 days, ticketed by the police and doesn't want to go back to school.

The Ex had her attorney extend an offer that she would let my daughter return if I drop the case and my son (10yo) would stay there permanently (even though he has expressed his desire to stay with his sister and to return to CO). Child support and visitation would be reworked too.

My attorney says that I may want to seriously consider the offer because my daughter is obviously in a bad way right now and my son seems to be adjusting better. He also has concerns that my case is not as strong as we would like so there is a good possibility that I could lose them both.


We have to prove endangerment and all we really have is the CFI report with the kids talking about Mom's alcohol use and the convict staying alone with them, the police report, diluted UA, and several Facebook posts about the convict's pot use. We could also talk about mental and emotional abuse of telling the kids they could stay and then changing her mind which she has done at least three times in the last 6 months.

They are claiming she broke it off with the convict so it's not an issue, she has a stack of clean "80 hour" UAs, she completely stopped drinking so it's not a problem, an arm load of old things to discredit me and question my parenting abilities (like the contempt mentioned above, bribery for offering to keep paying her, a 10yo DV and past alcohol use which I attended out-patient treatment for in '05, but nothing more recent) and an already prejudice Magistrate.​


I have no idea what I should do. My son will feel completely abandoned if I take the deal. I really think they would both be better off here however I don't want to have my daughter crash and burn in the mean time either.

Any advice would be greatly appreciated and again I am sorry for the length of this.
 
If it helps, here is the opening and the summary from the CFI report. (names dropped out)

Opening statement

I did not find that the children's environment with their mother had substantially changed. The allegations that the mother's abuse of alcohol endangered the children and that their physical health and emotional development were being adversely affected was not a new occurrence. Information that I received from the children, from family friends and from legal records would seem to indicate that alcohol abuse by the mother has been an ongoing problem. It's my perception that what has changed is how the children are relating to their mother's illness. The daughter is no longer willing to be her mother's caretaker and she has expressed a desire to live in an environment where the unknowns of what she will encounter when she returns home have been removed. There is also a question as to whether or not the mother's choice of companions presents a danger to the children.

My recommendation is that the current parenting time plan is modified and that the daughter and the son are placed in the primary care of their father (me). I believe the children's best interests would be served by making this change. In the Case Analysis section of this report is my reasoning for making this recommendation.

Summary

Case analysis

In my appointment to this case I was asked to investigate, report and make recommendation on the specific issue of whether or not the children were to remain with their mother as determined in the original decree, or if a change in care was necessary because a change in circumstances had occurred that endangered the children physically or significantly impaired their emotional environment.

I don't know to what extent the court was aware of the level of alcohol abuse that exists in this case. From what I can determine the children in this family have been exposed to their parents abuse of alcohol their entire lives. Their father by his report has been sober for about 5 years. It would appear from what was shared by the children that he has been sober for a number of years. Their mother on the other hand doesn't appear to have the ability to maintain sobriety. I'm not sure how she is passing her UA's. The probation officer and drug treatment program can't answer why she would have a negative UA when she admits to drinking. I find it highly unlikely that the one night the police show up at her home is the only night that she is drinking. When her son gives me the details of where she is hiding her alcohol in the closet it makes me think that it's a present and ongoing problem.

One could argue that this problem existed at the time of the decree and nothing new has entered the picture. I don't think that is accurate. Daughter, the center pin of the family, has gotten tired of being her mother's and brother's caretaker. She comments to not wanting to continue in an environment in which she wonders what she will encounter when she arrives home. This young lady hasn't had a normal life and when she attempts to do things that are normal for a 16 year old girl, her actions are viewed as being out of control and unacceptable. I find more than a little irony in the concern that others have about Daughter's driving with more than one other person in the car and violating CO law. Those same people are the ones who somehow dismiss the seriousness of her mother's alcoholism and drunken driving.

I think that admitting to drinking is an indicator that you are drinking. I'm not sure how that can be turned around to say you are not drinking. Mother told the police she was drinking. It's in the police report that she was drinking.

Mother's drinking is a problem. Mother's choice of companions also seems to be a problem. The Convict has 5 felony convictions, the last being as recent as June 2011. Several of those convictions are for domestic assault. Personally, I wouldn't want my children to be in the same home as this person. Father's interest in the Convict could be considered harassing, but I can't believe that a caring father wouldn't take issue with this person living in a home with his children. I saw the Convict's Facebook postings and he openly supports smoking marijuana. Medical marijuana isn't in existence in MN. It generally doesn't work well for people who have a substance abuse problem to hang out with other people who have substance abuse problems. I certainly question Mother's decision-making process. I don't think a case can be made about the Mother endangering her children physically, but I don't know about the Convict.

I do believe that children have the right to be happy and it perturbs me that some of the adults I spoke to in this case think this is a trivial thought. Children are not property and good parents do their best to create an environment that assures their children's happiness. Attacking the Daughter's behavior as a diversion from addressing Mother's behavior is at best weak.

Daughter and Son have indicated an interest in living with their father in CO. It's my opinion that their father is more capable of providing them with stability than their mother. He has no record of current alcohol abuse. He is not on probation. I am not aware that he associates with known felons. He has stable employment and adequate housing. I recommend a change in the parenting plan. I believe it would be in the children's best interest to live with their father the majority of the time.


Also I forgot to mention in the parent post that Mom took out a restraining order against me because I pulled the Convicts record and included a bunch of other BS to convince the MN court to issue it. I was going to fight it but I couldn't afford to fly up with all these other legal bills so it is still in efect.

I know there is a ton of info here but please give me some opinions. I have about a day to decide on the deal or risk it all and go to the hearing. I REALLY don't know what to do.

THANK YOU ALL FOR YOUR TIME!!!!
 
This is honestly hon, a decision only you can make.

The CFI report USUALLY carries an AWFUL lot of weight in court. However, if you believe the magistrate is already biased then you need to seriously consider what your attorney is telling you.

Your case is incredibly complex - and obviously neither of you have been perfect parents (not that there's any such thing, but I think you know what I mean :) ).

From an experience standpoint, I can honestly see this going either way. I don't particularly care for the CFI's report however - it seems...I'm not even sure how to put this. It seems less than objective in and of itself, and that concerns me a teeny bit. It seems a little "I think" versus "This is" and it's very obvious that the CFI's personal feelings are a large part of the findings. It might be that your attorney feels the same way as I do and that is why s/he is advising you to "take the deal"?

If we're both reading it right, that report might carry less weight than we would ordinarily expect. Is your attorney familiar with your magistrate and how often the magistrate follows the CFI's recommendations versus not?
 
I think you should have your lawyer postpone the contempt hearing until after or at the same time as the custody hearing. I think you should go for both as planned. I think the magistrate will give your daughter to you, on the basis of circumstances and her offer. It may go either way, however, I think she will give up the daughter afterward, regardless of how it turns out. A ten year old, alone, will have less credibility when ratting her out.
 
Proserpina,

My attorney has not gone in front of her before but the only thing he has heard is she makes "nutty" rulings that don't follow what you would think to be normal and she tends to be emotional. She doesn't cry but her decisions and rulings tend to be emotionally driven. So he is not sure what to expect from her. She is the Wild Card in this mess. His experience, like yours, is that judges usually follow the CFI recommendations about 90% of the time but he hasn't heard about her record specifically.

I would agree that neither one of us will be parent of the year anytime soon. I have only been going down the right path for about 5 yrs but Mom is currently a dry drunk. She doesn't think she has a problem and it's no big deal.

Yes, my attorney has said the same basic thing about the CFI report and that is what her attorney is going after. They are claiming bias and a lack of facts to back up his decision; as well as not being complete because he interviewed more of my references than hers. If we go to trial my only hope is that he will be better on the stand. Considering the other attorney wanted 8 hours to cross examine the CFI, it's going to be a tough day.

I appreciate your input. =)
 
she makes "nutty" rulings that don't follow what you would think to be normal and she tends to be emotional. She doesn't cry but her decisions and rulings tend to be emotionally driven.
Click to expand...

Emotionally, the cards are in your favor if you can play them from an emotional standpoint. You are the one who must ultimately live with the decision though.
 
Disagreeable,

I just sent a note to my attorney today on postponing the contempt so I am not freshly skewered before the custody hearing; so I am hopeful. I have heard from a few people that the CFI report is weaker than most but I would like to think the CFI will be better on the stand, so going to trial might not be that bad.(?)

What makes you think that the judge might give me my daughter anyway, even if she doesn't give me my son?

Thanks
Bill
 
Your daughter is having major problems. The CFI report supports this. Unless your ex will blatantly lie to the court about daughters issues and the offer she made you, the judge will likely see it to be in her best interests to go with you. Your role is the father concerned for his children's emotional and educational well being, in the face of the repeated issues at home. You know your daughter must come with you. If you weren't afraid of the neglect your son will suffer in silence, not having his sister to mentor him and cushion the hostile home environment, you would have accepted the ex's offer of your daughter only. You are pleading with the judge to see beyond today and extrapolate how the same thing your daughter is experiencing will soon be consuming your son also. Practice your shtick with someone now in preparation.

Even if your ex wins, she does not want your daughter, because she is making the party too hot. She wants her gone, but wants to keep the son and some money because she thinks she can control him alone.
 
Disagreeable,

That is a good way to approach this but do you think it meets the statute for endangerment? (14-10-129 (2)(d) )
Since I filed on the drinking and the the convict being in the home. Don't I have to prove that first before the judge will consider anything else?
 
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OP, I know you're worried and stressing over this.
But, think about why you're going through this now.
No need to comment, just think.

Going forward you should adopt much of what Proserpina and disagreeable have instructed.

Beyond that, allow the lawyer you hired do the job you hired him/her to do for you.

You're too involved emotionally to take such an active role.

If you believe your attorney isn't representing you properly, arrange a meeting to discuss your concerns.

Finally, Lady Antebellum recorded a song, "Just A Kiss".

I've excerpted the following lines from the song:

Just a kiss on your lips in the moonlight
Just a touch of the fire burning so bright
No I don't want to mess this thing up
I don't want to push too far
Just a shot in the dark that you just might
Be the one I've been waiting for my whole life
So baby I'm alright, with just a kiss goodnight

I know you don't want to mess up your chance to stay involved with your children.

So, don't.
 
No one can tell you how to proceed because no one can guess what outcome will be the most favorable. All we can do is try to give insight. Ultimately, you can only be prepared for any path you chart and make decisions based on what you feel is best. The big thing is don't over think this. All you can do is attempt to make the best decisions. Being pure of heart renders you guiltless of the outcomes possible. These children will grow up in spite of what you and mom do. All you can do at this point is try to grease the path.
 
Thanks Judge. Good advice as always. I got shafted so bad with my first lawyer that I am reluctent to trust the new one. It's not that he is bad but he has thrown his hands up a couple of times so I got him to sit down and brainstorm with me, and we came up with a good course of action. That is what's happening now so I am looking to brainstorm again before we admit defeat because he is painting a bleak picture and I am not ready acccept that. I'll try to step back a bit though.
 
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