need advise for custody

[kevinaz06]

I live in Montana. Ex and I were divorced over three years ago, we have a 6 yr old daughter, and have had a court ordered parenting plan in place since then. The parenting agreement is 50/50, week on, week off.

I just moved across town and when I did, ex filed for full custody based on the fact that I moved out of daughters school area. Ex does not live in school area as well, daughter went to that school so she could attend w/adopted brother.

I cannot afford an attorney, so I am representing pro se. In my response I expressed that there is no reason to change parenting schedule. We were ordered to attend mediation, ex and her attorney would not go. Went to status conference w/standing master, I requested that daughter go to counselling and ex and I attend mediation. I also requested that the court require ex to honor the alternate care clause in our original order. Court granted all of the above.
My question is I dont know where to go from here. The mediator and counsellor have both said that they think the child should have a primary residence and the other parent frequent visitation. I feel that I have alot of good reasons why daughter should live with me and visit mom. I also feel that this could possibly backfire because she has an attorney and I dont. Not afraid of anything I have done or said, just not much legal experience.

I could also request that the court keep the residential schedule the same, but I am not sure how/when to do this. We have only gone to one counseling session and our first mediation is Monday. Given the direction we have taken thus far is it too late for that?

How do I build my case for daughter to live with me if mom presents no immediate damger to child?

 

[Scooterdog]

I never had to deal with mediation, but I do have tons of info on it.

If mediation fails, that would be better for you I would think.

I also feel that this could possibly backfire because she has an attorney and I dont. Not afraid of anything I have done or said, just not much legal experience.

All lawyers in Montana are incompetent. Wothless, lying, stealing peaces of, well, you get the point.

You have a strong advantage in self-represtentation. 1st, she has to pay an ungodly amount (this is why she is avoiding med. I would assume), while you pay nothing more than filing fee's and your time. 2nd-you KNOW what the hell is going on in your case, a Montana lawyer won't know. 3rd-Who can fight for you cause better than you? Nobody!

With that-Mediation should be there to help you. If she doesn't want to take part, fine. How do you think the judge will view that? I would guess not well for her, as she is making no attempt to settle a damn thing. I have info on Mediation if you need it. Check your pm's

Now down to custody. How dare this woman flare up just because you moved to another part of town. Clearly, you don't want to bounch the child from school to school every other week. But, there are alternatives, which could easily be handled in mediation. I hate to see her reaction had you moved out of state.

I feel that you need to stand on the fact that you have done nothing wrong, and custody/visitation should not be reduced because you moved in town. YOu should have more summer time, holidays, weekends if this be the case. How far would you have to drive to take her to school? I know its' a pain in the butt, but if you can do it in an hour, you may want to consider that as your first offer, the alternative being what I mentioned before.

Here are some cases you can use:

A child has an equal right to be raised by the father, and must be awarded to the father if he is the better parent, or mother is not interested. STANLEY V. ILLINOIS, 405 US 645 (1972)

Arguments that Joint Custody constitutes a "fundamental right." BECK V. BECK, 86 N.J. 480, see also 23 Ariz. Law Review 785

Ex Parte conferences, hearings or Orders denying parental rights or personal liberties are unconstitutional, cannot be enforced, can be set aside in federal court, and can be the basis of suits for money damages. RANKIN V. HOWARD, 633 F.2d 844 (1980); GEISINGER V. VOSE, 352 F.Supp. 104 (1972)

Attorney can be sued for malpractice under consumer protection laws. DEBAKEY V. STAGG, 605 SW 2d 631 (1980)

pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers. HAINES V. KERNER, 92 S.Ct. 594; JENKINS V. MCKEITHEN, 395 US 411, 421 (1969); PICKING V. PENNA. RWY. CO. 151 F.2d 240; PUCKETT V. COX, 456 F.2d 233

Custody can be changed if wife is "disrespectful" of "visitation" order. MURASKIN V. MURASKIN 283 NW 2d 140 (N. Dakota 1979)

Litigation stops when mediation is going on. This will give you more time to prepair for court. Have you proposed a detailed parenting plan?? I have one you may want to look over.

 

[kevinaz06]

Custody

Scooterdog,

Here is what I would base my case on having primary custody of daughter:

1. Mom is bi polar and has had many attempts at suicide, stayed in mental hospital. All of this happend right before we got divorced, but I think she might be having another episode, explains the bs attempt for custody on her behalf

2. Mom continually confides in and manipulates daughter. She tells her that she is going to live with her, not see me or her siblings (I remarried and have more kids. Daughter was 2 when mom split and has been living with new wife, son and sisters since then). Mom talks to daughter about all of the adult issues going on. Tries to get her to tell counselor that she wants to live w/mom. My only reply and daughter backed it up yesterday to counselor was "dont worry about any of these things, just focus on being a kid".

3. Mom has not complied with alternate care clause in original order. The clause says that if either one of us cannot parent daughter for a period of four hrs or more, we are to give the first right to the other parent. I filed contempt charges , but standing master wants to wait until mediation has been tried before the court considers charges.

4. In our divorce, we has two GAL's. First one was a psycologist and did a very thorough investigation and recommended that daughter live with me. I had one of those crappy MT lawyers and she did not fight hard enough to keep it enforced, needless to say, ex's attorney got the court to appoint another one, a lawyer, and he split it right down the middle to try to make everyone happy. He is no longer in the country.

5. I actually reccomended the mediation and counseling for daughter. Ex's attorney fought against counseling knowing that possibly mom has said some things to daughter that she shouldnt have, Standing master approved.

6. I dont feel that it is in the best interest of daughter to be seperated from her other siblings.

7. My move actually made us closer to ex, only 8 min away. New school is actaully closer to ex than old. I feel that it is in the best interest of daughter to go to school with siblings for emotional support at school.

8. Mom has a live in boyfriend whom I dont know, she will not give us his information other than first name, he watches daughter while mom is at work, he is not an agreed upon person to watch daughter per alternate care clause.

9. I have just purchased the home we moved to, having a permanent residence provides more stability, nobody can kick me out or make me move. Mom lives in rental.

We went to mediation w/same mediator when we got divorced, mom was considered non cooperative, advisarial and walked out many times.

I have alot of other small issues, but they are probably irrelevant in court, such as mom smokes pot, and other little things that I cannot prove unless I subject daughter to questioning. Dont think its worth the damage that could do.

Thanks for the pro se info, makes me feel a little more confident.

What do you thinK?
Do I have a strong case?

 

[Scooterdog]

Yep, there is always a case. The question comes down to< "can I win?". You've already won by having 50/50 custody, and now the ex wants to take it away. Good luck to her on that one.

Yes, you have a very strong case. She is doing exactly what most women do, and it's dead wrong. The courts have better things to do than hear squabling over kids and this is why they have mediation. She is doing that wrong. Mediation is a benefit as far as I'm concerned, and it isn't as final as say, having it out in court, which looks like your going to end up.

Document everything. (I'm sure you already have)
Collect some witness's. (court's don't like "he said-she said)

 

[confusedinevada]

I live in Montana. Ex and I were divorced over three years ago, we have a 6 yr old daughter, and have had a court ordered parenting plan in place since then. The parenting agreement is 50/50, week on, week off.

I just moved across town and when I did, ex filed for full custody based on the fact that I moved out of daughters school area. Ex does not live in school area as well, daughter went to that school so she could attend w/adopted brother.

I cannot afford an attorney, so I am representing pro se. In my response I expressed that there is no reason to change parenting schedule. We were ordered to attend mediation, ex and her attorney would not go. Went to status conference w/standing master, I requested that daughter go to counselling and ex and I attend mediation. I also requested that the court require ex to honor the alternate care clause in our original order. Court granted all of the above.
My question is I dont know where to go from here. The mediator and counsellor have both said that they think the child should have a primary residence and the other parent frequent visitation. I feel that I have alot of good reasons why daughter should live with me and visit mom. I also feel that this could possibly backfire because she has an attorney and I dont. Not afraid of anything I have done or said, just not much legal experience.

I could also request that the court keep the residential schedule the same, but I am not sure how/when to do this. We have only gone to one counseling session and our first mediation is Monday. Given the direction we have taken thus far is it too late for that?

How do I build my case for daughter to live with me if mom presents no immediate damger to child?

Hi Kevin...why didnt you tell me you were having difficulties? Hmmm...building a case against your ex...each parent loves their child...each parent wants to have their child live with them when there is a break up...this is natural...what you need to do is ask yourself...why you want your daughter to live with you...is there a reason related to her welfare? If so, that can be your starting point ...if you cant find a reason...then all I can say is...whatever you do...dont fight over her...it will make her think the break up is all her fault...that reaction is normal for children...love your children more than you dislike/hate your ex...is my philosophy...I am a foster mom of 3...Ive been in and out of courts watching many custody disputes and how the courts view them..and how the social workers view them...it isnt pretty. Fill me in on a few more details, I will try to help if I can. Sorry to hear of your situation.

 

[confusedinevada]

well there ya go...if you think mom is smoking pot...you can tell this to mediation and ...well in california...what they do is make an order that if either parent thinks the other is doing drugs...they can mandate a drug test at any time but you have to pay for the other parents drug test because you made the accusation...this is to discourage drug use accusations for the sake of harrassment...I think they cost around $100. Pot stays in the system for 30 days...and a hair analysis is will show drug use for even longer than that...(unless she shaves her head...in which case drug testing agencies have been known to collect hair from other areas of the body if you know what I mean.) Also part of the order is, if the parent refuses the test...it is considered a dirty drug test.

 

[Carpet_Dude]

Hi Kevin! I'm a custodial Dad myself, and have been for 12 years (Daughter is almost 13). I think you should get a private investigator to get proof of the drug abuse, and dig up infromation about the Ex's boy friend.

You might be surprized how easy it is to get dirt on someone. PI's can do things that you CAN'T. Like walk up to the door during a party at 2am and ask to use the phone. OR, hang out with them at a bar and let them confess to their life style.

From my experience, Courts seem to believe PI's testimony.

I personally would get the dirt, and fight for FULL custody with supervised visitations.

Wish you ALL The BEST !!