Ask Me Help Desk - Young son not living with custodial parent

My boyfriend has joint custody of his elementary school age son with his ex-wife in Connecticut. Their custody agreement says that she gets him during the week and my boyfriend gets him on the weekend and holidays. He is also paying child support. His ex-wife has not been living with their son for three years. He (their son) is currently living with his maternal grandmother. His mother has very little part in their life. My boyfriend has been extremely active, never missing a weekend and attending every sporting/school event. She recently got engaged (after dating someone for 2 months) and is planning a wedding in a few months. She told their son that once they were married, he would go live with her. Their son confided in us that he does not want to live with her at all. We couldn't get him to elaborate on why, but he was adamant that he wants to live with us. Both moves would require switching schools. We are not engaged yet but are planning on getting married, we just don't want to rush into things like his mother is doing. What are our options? I know the courts typically favor mothers, but would the fact that she doesn't live with him and has played almost no part in his life affect this? We just want to protect his son.

Quote:

Originally Posted by munchkin656

My boyfriend has joint custody of his elementary school age son with his ex-wife in Connecticut. Their custody agreement says that she gets him during the week and my boyfriend gets him on the weekend and holidays. He is also paying child support. His ex-wife has not been living with their son for three years. He (their son) is currently living with his maternal grandmother. His mother has very little part in their life. My boyfriend has been extremely active, never missing a weekend and attending every sporting/school event. She recently got engaged (after dating someone for 2 months) and is planning a wedding in a few months. She told their son that once they were married, he would go live with her. Their son confided in us that he does not want to live with her at all. We couldn't get him to elaborate on why, but he was adamant that he wants to live with us. Both moves would require switching schools. We are not engaged yet but are planning on getting married, we just don't want to rush into things like his mother is doing. What are our options? I know the courts typically favor mothers, but would the fact that she doesn't live with him and has played almost no part in his life affect this? We just want to protect his son.

1. Legally you are no one in that case. Your boyfriend has rights and obligations.
2. Let him file in Court for custody modification.
3. He has to prove that she has not been living with their son for three years.
4.The judge is not under obligation to listen to his son but he/she may decide to listen to him.
5. Good luck.

Modification: “means a child custody determination that changes, replaces, supercedes or is otherwise made after a previous determination concerning the same child, whether it is made by the court that made the prior custody determination.” (Conn. Gen. Stat. § 46b-115a(11)(2007).

Some cases from Ct
Janik v. Janik, 61 Conn. App. 175, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940 (2001). Modification of custody from joint legal custody to sole legal custody

“We conclude that the evidence was sufficient for the court to find that the defendant did not provide a supportive and stable environment for the child and, therefore, that it was in the best interest of the child for the plaintiff to have sole custody” (p.184).

· Kelly v. Kelly, 54 Conn. App. 50,56, 732 A.2d 808 (1999). “Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order.”

· Borkowski v. Borkowski, 228 Conn. 729, 737-738, 638 A.2d 1060 (1994). “To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. …[I]t is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order… The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided… Therefore, although the trial court may consider the same criteria used to determine the initial award 'without limitation'… its inquiry is necessarily confined to a comparison between the current conditions and the last court order.”

· Cookson v. Cookson, 201 Conn. 229, 514 A.2d 323 (1986). The standard of proof applicable to modification of custody proceedings is the “fair preponderance of the evidence standard”.

· Evans v. Santoro, 6 Conn. App. 707, 710, 507 A.2d 1007 (1986). “…the burden of proving that a change of custody would be in the child's best interest rests upon the party seeking the change.”

· Hall v. Hall, 186 Conn. 118,122, 439 A.2d 447 (1982). Modification of a custody order must be “based upon either a material change of circumstances which alters the court's finding of the best interests of the child... or a finding that the custody order... was not based upon the best interests of the child.”

· Fish v. Fish, No. FA 00 0339326 S (Conn. Super. Ct. Middletown, June 3, 2003), 2003 Conn. Super. Lexis 1669. Quoting both Borkowski and Kelly.

· Rudolewicz v. Rudolewicz, Superior Court, judicial district of New Haven, Docket No. 410812 (August 20, 1986), 1 C.S.C.R. 664. “... the plaintiff has proved by the preponderance of the evidence that at the time of the entry of the decree of dissolution the court had focused its attention primarily on the termination of the marriage relationship and not on the best interests of the child.”

GV has given you some good ammunition. I strongly suggest that you move NOW so you can prove that the child has not been residing with the mother. Will the grandmother cooperate with your boyfriend?

Thanks for these answers! I'm not sure if the grandmother will cooperate. They have had conversations in the past where she has said that she fully supports him and wants their son with him. But, that was when her daughter was living with random friends and out partying all the time. The grandmother seems to be happy with the engagement and may have changed her position on who their son should go with. She (the grandmother) has been very manipulative in the past so we're worried that if we mention anything to her, she'll alert her daughter who would then take steps to prevent us from doing anything.

How would we prove that she hasn't been living there? She had been bouncing from friend's houses (each one ended up kicking her out) so I'm not sure she had any steady mailing address.

Quote:

Originally Posted by munchkin656

... We are not engaged yet but are planning on getting married, ...

As an aside, "planning on getting married" is what "engaged" means.

If I were the judge, I would tend to find that, if the child is in a reasonably good situation living with his grandmother, there is no need for a change. The grandmother, as a proxy for the mother, is merely the means by which the mother supports and cares for him.

If the mother indeed goes through with her plans to re-marry and have her son live with her and her new husband, that would be "changed circumstances", and all bets would be off.

Thanks again for the answers! We haven't officially gotten engaged yet but we do talk about getting married; that's what I meant about planning on getting married.

We just found out that his mom has been taking him on reposession jobs with her loser fiancé. The fiancé carries a gun on these jobs because they are so dangerous. Yet she doesn't find a problem with taking her child. I know that I personallly have no say in the matter but I can give the information to my boyfriend, who does have a say. Their son should definitely not be taken on these trips and if he lives with her he will be. Now what do we do? Does that change anything?

Quote:

Originally Posted by munchkin656

...
We just found out that his mom has been taking him on reposession jobs with her loser fiance. The fiance carries a gun on these jobs because they are so dangerous. Yet she doesn't find a problem with taking her child. I know that I personallly have no say in the matter but I can give the information to my boyfriend, who does have a say. Their son should definitely not be taken on these trips and if he lives with her he will be. Now what do we do? Does that change anything?

If your boyfriend believes that taking the child along is dangerous, he should suggest to the mother that doing so is a bad idea. If she persists, he can ask the court to prohibit this conduct in the future.

Quote:

Originally Posted by munchkin656

We just found out that his mom has been taking him on reposession jobs with her loser fiance.

First, despite what you feel about the mother or her fiancée (or whether I agree or not), you need to soft pedal remarks like "loser fiancee". You and the boy's father need to take the high road. Report the facts, facts that you can prove. But leave the characterizations out of it.

Yes, taking a young child on a repossession job does seem like an unsafe and irresponsible thing to do.

I completely understand needing to soft pedal remarks about his mother and his fiancé. I definitely should have. You have to understand that this has been going on for months and has completely exhaused both of our nerves. Either way, her fiancé is not the ideal man any father would want for their daughter, let alone as a step-father for their own son. Since my boyfriend is the father, his rights are limited. It seems like mothers can get away with murder while the fathers have to fight just for a few minutes with their kids. I just want to know what to do from here... what steps do we take?

Quote:

Originally Posted by munchkin656

I completely understand needing to soft pedal remarks about his mother and his fiance. I definitely should have. You have to understand that this has been going on for months and has completely exhaused both of our nerves. Either way, her fiance is not the ideal man any father would want for their daughter, let alone as a step-father for their own son. Since my boyfriend is the father, his rights are limited. It seems like mothers can get away with murder while the fathers have to fight just for a few minutes with their kids. I just want to know what to do from here... what steps do we take?

Believe I understand your frustration. But the courts won't care and that's what you have to play to.

Courts have traditionally favored the mother, but that's been changing. I believe we have outlined the steps HE needs to take. That's document everything and file for primary physical custody. Retaining an attorney would be your best bet as they can tell you how to properly prepare the case and will know the local court climate.