[cllockhart]

I have some questions regarding custody and child support.

My ex-fiance (never married) and I broke up after he got arrested for domestic violence. He did not get convicted of this but I did get a restraining order against him, protecting myself and our son. He assaulted me while I was holding our child putting both myself and our child in danger.

I have since dropped the restraining order but we are still figuring out what to do about custody. He has refused to sit down with me and make a parenting plan. He just tells me that he wants visitation of our son whenever he is not working, which I do not think is fair since he only works 2 to 3 days per week. That would not allow me any time with him, since the days he wouldn't have him, I would be at work. Right now I am allowing him to see him (with me present) pretty much anytime he wants. I am not a big fan of this since I am having to cancel plans to accommodate what he wants. As of right now he does not have any rights to see our son, because he hasn't gone to court to establish parental rights.

He is now telling me that he doesn't want us to go to court at all to get custody sorted out. I would assume that he doesn't want to do this because he now realizes that once sorted out he will have to start paying child support. I want to have a formal parenting plan and also have formal residential custody (which he doesn't want me to get, because of the child support thing), but I do not want to deal with arguing with him in order to get this.

What should I do? Should I take him to court or will this just make things get messy?

A few background details: He does not have a place to live right now (he is staying with a friend who is kicking him out at the end of the month, and his credit score is too low to rent an apartment), he is on probation with his job for stealing and the case is under investigation so he still may be fired, We live in Kansas.

[AK lawyer]

I...
What should I do? Should I go ahead and take him to court or will this just make things get messy?.
...

Yes, I think that would be the thing to do.

If he cannot come up with a definite schedule, the court will do one of two things:
Either

• order a plan depending on your schedule; or
• simply give you primary physical custody with reasonable visitation to the father. This would, in effect, allow you to dictate the schedule.

Perhaps, if forced in this way, he will decide whether to fish or cut bait.

[cllockhart]

With physical custody I would be entitled to child support, correct? I ask because I have always paid a majority of the bills but now with everything on me, I am starting to get a little short on funds! I don't want him to have to pay a crazy amount but I am starting to struggle since I am a full time student. I also have a full time job, but it is not enough at this point to pay for everything. I also found out after splitting that he let our sons insurance get canceled because he did not get some necessary information to the insurance company and I had to get him an individual policy which is not cheap and when you combine that with lawyer fees and therapist fees (for my mental well being regarding this whole situation) I don't know how much longer I can keep paying all the bills on my own.

[AK lawyer]

With physical custody I would be entitled to child support, correct? ...

Certainly, assuming you are awarded primary physical custody. In most places there is a formula for this. Both parents' incomes, as well as the portion of time each has the child, are factored in to figure a monthy child support figure.

[cllockhart]

Would it be normal for someone in my situation to be granted primary physical custody? I own my own home, which our son has lived in since birth, and I have always been the primary care taker of our child. Would there be any reason for me to not get primary physical custody?

Again, my ex does not have a place to live at this point.

[ScottGem]

Yes it would be normal for you get primary physical custody. For him to get primary physical custody, he would have to show a stable home environment, obviously he can't.

And yes you need to formalize this in court. Family courts are generally less formal, so you may not need an attorney. Essentially you need to file for full physical custody and child support, that's all. If he wants to ask for visitation rights, let him do that. If he does a set schedule will be made. If he doesn't then you allow him reasonable visitation BY APPOINTMENT. And you don't have to agree to visitation on a whim.

[Fr_Chuck]

Yes, informal systems seldom work, and it appears he is hoping as in many cases he can play nice and perhhaps not be required to pay child support.
Also he will want to visit when ever and that is not correct either.
But also, without any court orders, if he has the child, there is no order that says he has to return the child to you either.

[cllockhart]

Well right now without the custody arrangements he does have to return him to me. Neither of us realized this at the time but apparently since he has not established his parentage through the court system, he is not LEGALLY the father and he has no parental rights. He will not have any parental rights until we have sorted out custody arrangements. I have been trying to do this, because I honestly want to be fair to him and want him to be legally seen as my son's father. It just doesn't seem like he wants to legally be his father. He just wants to see him whenever is best for him. Am I still able to pursue custody, even if he has a legal order to try to establish custody? Can I still go to the court and ask for custody even if a hearing is already supposed to be set whenever we have made a parenting plan? He has filed a motion to attempt to establish his parentage. So the courts already have the paper work for this. He was told the next step was to try to work out a plan for visitation and custody with me and if we aren't able to come to an agreement he would have to ask for the judge to decide what happens. So again if this is already happening, can I still try to file for custody?

[ScottGem]

If there is already court motions in place then follow through on them.

[cllockhart]

I don't know how. The ball is technically in his court right now with that case, since he has to present the parenting plan to the judge to get his parenting rights. But, he refuses to do this, most likely since he will have to pay child support once this happens. So can I still file for custody on my own?

Also I want to apologize if I am not using the correct legal jargon. I am not sure of the correct words to use. (Hence me asking questions on this site.) :-)

[ScottGem]

Don't worry, we'll correct any terms you misuse ;)

Ok, and you want child support, correct? Then I would go to the court where the case was first presented and file a counter motion for child support. That will force him to act, since he will have to answer that complaint or the court will order support without his input.

[cllockhart]

Here is an update on the situation:

We still are in the process of trying to figure out custody since he has taken so long to formally submit his answer to my proposal for custody. He is not happy that I want primary residential custody and joint legal custody. He is fine with the joint legal custody, but he wants to have residential custody anytime he is not working, which again is 4-5 days per week. I have still not received a dime to help pay for anything regarding our son. Now he is so mad that I won't allow him joint residential custody that he claims he is going to take me to court so he can get sole residential and legal custody. He says that he is going to tell the judge that I am an "unfit mother" and that I verbally abuse our child by yelling at him all the time and physically hurting him when he does something wrong. Our son is 16 months old and of course I yell at him when he is doing something that might hurt him, but that is the extent of my yelling. I have never laid a hand on him except for maybe him falling when I pull him away from something that might hurt him (for instance reaching up towards the stove top) but he has never been injured from this, there has been little to no crying on his part either. Is there any way a judge will award him sole custody based on this? I feel like there can't be. Also he still does not have a place to live and is still staying on a friend's couch.

I also was wondering if since both of us are going for primary residential custody will a judge be more likely to want us to meet in the middle and get joint residential custody? I really don't want this since he has never even been a father to our son. I have been the only parent in his life since the beginning. My ex would only play with him until he got fussy then it was always up to me to fix whatever the problem was.

Is there anything anyone can recommend to help this go in my favor? I am completely terrified of losing my son!

[cdad]

You said he is not working 4 or 5 days a week. There might be a way to compromise everything by allowing him to babysit the child on those days. So he can see the child while your at work and you can eliminate daycare fees. Then you can pick up your child after you get off work. That way you know that the child is fed and bathed properly if that is a concern. Is that something that would work for you? You would still retain primary custody as that is where the child sleeps.

[ScottGem]

Califdad has a good solution. But You need to one, keep a record of his threats and two, have character witnesses lined up to counteract his potential lies.

Also make sure the question of why he has not called social services to report how you might be allegedly abusing your child is asked.

[cllockhart]

I think he is just doing this so he doesn't have to pay child support though. Also he doesn't live near me. He lives over an hour away, which is why I don't thing joint residence would work. So it would be quite a hassle trying to pick my son up from him.

[cllockhart]

I have written on this topic before, but feel the need to do it again. If anyone has read my previous questions, they will know the back story. For anyone that has not here is a short and sweet version.

My ex and I split up and I now have primary residential custody and we share joint legal custody of our son. When we met with lawyers to figure out a schedule for visitation, I felt very bullied by his lawyer into giving my ex everything he wanted. I voiced my concern about my ex getting the amount of visitation that he wanted (which was one 3 hour block per week and 2 overnights). I was concerned about this because I know that my ex does not care for our 18 month old son properly. When we were together and I would leave him home to watch our son while I was at work (8 hours), he would not change his diaper, feed him, and would leave him in his crib screaming all day long. I only left our son with him a handful of times because I was aware this was going on, but I didn't say anything to my fiancŽ at the time. I do not have any documentation or proof that this was going on, except for a neighbor telling me she could hear my son crying while she was working in her garden. I was sure about the diapers and food thing because I would know how many diapers and jars of food there were when I left the house and I also knew there were the same amount there when I got home. But of course I was not smart enough to document it.

Now my ex has had him for 2 overnights and 3 three hour blocks. He called and said he was too tired for one of the 3 hour blocks, so he has only had him 4 times. When he has him for the 3 hour blocks it is from 10am-1pm. We have a notebook that goes back and forth between us in which we document all diaper changes, food eaten, times naps were taken, bedtime, etc. In the four times that he has had him he has only had 2 diaper changes and has only been fed a meal 2 times. I have verified with my ex that he didn't just mistakenly forget to write something down and he did not. This is the care my child is getting. I am scared for him. I don't feel that this is a nurturing environment for him. I am worried sick every time he goes there and all I can do is sit at home and cry. What can I do? Since I now have documentation of these events, I'm sure I can do something, but what? How long do I have to wait? Should I wait till something happens to my son before I report it?

On another side question, his family is from California (we live in Kansas). I want to also make sure that he is not able to take him to California at all for any vacations to see his family. His 27 year old brother who still lives with his parents, is a criminal, he and his friends jumped a guy coming out of a bar and put him in a coma. His friends covered for him since he was a little younger than them, but they all went to prison. He did not. But now that they are out they come and hang out at his parent's house all of the time. Also I have seen drugs being done at this house. Again, no documentation. But even at my "baby shower" there were drugs being passed around and large quantities of alcohol being served. There were children running around while all of this was going on and obviously it was not healthy for me, while I was pregnant to be around the smoke from these drugs. Is there anything that I can do to keep him from taking our son to California to visit? Again it would concern me so much for my child to be in this environment.

[JudyKayTee]

I've attempted to read and digest your many questions on this and similar issues. In a "nutshell" - go to Court, PROVE the accusations you have made concerning the danger to your child (both mentally and physically), request an Order that your "ex" not leave the area with the child (this is a commonly granted request, sometimes ordered without being requested), ask for any other relief you believe necessary. You don't "report" the behavior - you go back to Court and request an Order.

I know you don't want to hear this and have been unhappy with AMHD advice before (https://www.askmehelpdesk.com/family...-590031-3.html) BUT I'd be very, very careful about what I say - you admit you knew the child wasn't being cared for properly and so you "only" left him with the father a "handful of times." The Court is going to find that that statement doesn't make YOU look responsible either. There is the same problem with your baby shower - you SAW people drinking and drugging with children "running around" and did nothing. You apparently allowed yourself and your unborn child to be exposed to something "from these drugs" and took no action.

You had a restraining order against the father for domestic violence, an Order that protected both you AND your child... and you dropped it? You can't have it both ways - he's either a danger or he's not. You should be very careful or you are going to look unstable, too, particularly in view of your past relationship (as you have posted) with the father.

PROVE that drugs are being used around the child and get the Order changed.

I asked that this question be combined with at least one of your other threads so that the story is easier to follow. Please stop opening new threads.

[cllockhart]

Sorry for opening a new thread, in the past when I have written new information on an old thread of mine they asked for it to be separated and so I just figured I'd do that again.

As for me knowing about the neglect taking place, I gave him the benefit of the doubt the first couple of times, thinking that maybe he knew where some food or diapers were that I wasn't aware of. After about the 4th time I did not leave our son at home alone with him anymore. I would always have him sent to child care even if my ex was at home. And the drugs that were going on were not in my control. I did avoid the areas where the people were doing this. I also ended up going inside early when the heavy drinking and drug use began. I did not want to be around this. I did all that I could to make sure that myself and my unborn child were taken care of. And the children running around was a normal thing for them. They throw parties like this every couple of weeks and have children present. I have not attended these but know that they do occur. I don't know California law. I do not know what is legal or illegal there. Heck I don't even really know my local law. I do know that it is legal to have medical marijuana there and do not know if this can legally be done around children. I didn't know how I could step up, and instead of causing a big fuss I just avoided the situation.

So I am supposed to go to court and request an order. How long do I wait to do this? Should I do this immediately, or wait until there is more evidence supporting my statements? Like you said about the other matter, I don't want the court to see me as not responsible for not reporting it sooner, but I also don't want it dismissed for lack of evidence.

[JudyKayTee]

When it comes to protecting children, including unborn children, sometimes you HAVE to "step up" and "cause a big fuss." Not everyone is an activist but you are talking about children! I don't know California law either but I'm pretty sure marijuana is not allowed around children.

Yes, you go to Court as soon as you have proof of what you say.

There's a fine line between filing too quickly and filing too late - and I don't know how you draw that line. I think you have to decide how dangerous the situation is, if he plans to leave with the child, and then proceed. At the moment you have equal rights so if he decides to leave you'll have a difficult time getting the child returned to you.

[ScottGem]

Just an aside here. If you are asking a totally new question start a new thread. But if you are adding to or following up on an existing thread, keep them together.