[JoeStone]

I live in California...

I was married for 4 years. During that time, my wife and I had two children (they're now 2 and 4 years old). I filed for divorce from her right at our 4 year anniversary and the divorce was final 6 months later. We agreed on joint legal custody and that she would have primary physical custody of our children with me having visitation. Both child and spousal support were established, I've always paid it on-time and in-full. A visitation schedule was specified at the time of the divorce, but it's been changed since then and support amounts recalculated as well (we negotiated an amount rather than using the court-calculated amounts since her income is unverifiable). When we were married, I worked full time and she was a stay-at-home mom.

The bullet-points of my issues:
- Whenever our children have had health issues (rashes, fevers, etc... ), she never does anything about it. I don't get notified of the problem but as soon as they come to visit me and I see it first-hand, I make doctor appointments and take them myself. I tell her about the appointments ahead-of-time, but she never goes. Both of my daughters have had really bad rashes in the past, the doctors have told me it's due to not washing sufficiently. When I pick them up from my ex, they're usually filthy and I immediately give them a bath/shower because they're so dirty. My ex actually admitted to me that she doesn't wash their hair because they don't like it being washed. She leaves it for me to do when they see me twice a week... that way I'm the bad guy.

- I enrolled our oldest daughter in preschool. Halfway through the process, my ex tried to say that she wasn't ready for school, lied to be about filling out the portion of the paperwork she was responsible for and hid the forms from me (when she promised me she would fill them out and return the papers to me), and tried to prevent her from enrolling. I eventually convinced her it was OK for her to attend school and finished the process.

- When enrolled in preschool (mind you it's an state-preschool, not a daycare... she's 4 so it's not mandatory education yet), I was responsible for taking my daughter two days per week and my ex was responsible for taking her one day per week. Of the 10 weeks of the school program, my ex only took her TWICE... she only missed one day that I was responsible for and it was due to a doctor appt. She's never provided legitimate reasons for the absences to me or the preschool.

- As mentioned before, I pay spousal and child support. I pay it every two weeks on paydays. It's deposited directly into her bank account by my payroll service, so it's instant and basically guaranteed for her. Whenever she overdraws her bank account, the letters from the bank come to me (she never changed the address away from our old PO box, which I still use myself). I get the overdraft letters CONSTANTLY. She admitted to me this week that the last two support payments (totaling $600.00) went entirely to bank fees and her account is STILL overdrawn. What's the point of me paying support to help pay for our children's needs if she's just pissing it away on bank fees because of her own irresponsibility!

- She lives in the garage of her parents' house with our children. She has her own bed, and our two children share a twin size mattress & boxspring that sits on the floor. Her boyfriend frequently stays overnight in the same room. The house is a two bedroom + 2 car garage (remember: my ex and 2 children live in the garage). One of the bedrooms has my ex's parents in it, the other bedroom has my ex's aunt and my ex's cousin. The livingroom has my ex's other cousin and her brother. The total people living in this 2 bedroom + garage house is 9!!

- She's always been a 'go with the cool crowd' personality. When we split up, she started hanging out with very questionable people and dumping our children off on her parents so she could party at-will. Her parents have grown tired of it and have kicked her out of their house for days at a time, on several occasions. She's stayed at hotels with our children because she had nowhere else to go (the children could have stayed with me but I was out of town on business each time). She recently picked up the disgusting habit of smoking because her friends do it (seriously-that's the reason she gave me when I questioned her about it). She's recently started to get tattoos and now likes to draw on our children with marker & pen so they have some too. Of course, they're young children so they think it's cool. Personally, I don't like tattoos; especially written in very hard to remove ink on my very young children.

- She's worked a few jobs since our divorce: housekeeping, newspaper delivery, a few under-the-table jobs for family members and friends. ALL unverifiable income. She quit her last job 3 months ago and doesn't seem too motivated to find more work. I'm guessing she's somewhat living off the support I pay to her (see above for notes about her money management skills). When we were going through court, she consistently claimed that she had no income because she was unemployed or between jobs.

- As part of the divorce, I had to buy some assets from her. I paid her a lump-sum payment of $13,000 when the divorce was final; I had to borrow the money and am still paying on the loan. She blew the money on roadtrips with her boyfriend (while leaving our children with her parents), parties, etc... Within 5 weeks the money was spent... the only benefit that I could tell that our children saw of their mom getting all that cash was some new clothes from Salvation Army (I'm not joking either).

- She's admitted light drug use (smoking weed) to me a few times. I don't think it's something she does on a regular basis. She has no health problems, so I know she doesn't have a prescription.

- Her sexual promiscuity is apparent by just talking to her and her friends. I don't have any proof that anything is said/done in the presence of our children. I'm worried about the long-term impact this will have on our children. Since our split over a year ago, I've had one relationship (with a woman who had a child in the age-range of my own children... it was like a constant play date for all of them), she's had over 6 that I know of. What will seeing 'mommy' with all these different men do to my children?

- She carts our children around with her while she drives her boyfriend around for errands. I'm pretty sure they smoke in the car with our children sitting in the back seat (they wreak of smoke when I pick them up for visitation). I KNOW she smokes with them around though... they've told me that they don't like her cigarettes and that they stink. I've seen them in public with the cloud of smoke surrounding my ex and children... it's not like they know to avoid the smoke. It's MOM'S JOB to keep them out of harm's way, right?

She just doesn't care! My family is convinced that my ex is just using my children as a paycheck. Honestly, it's just money so I don't care if she is... I just don't like that our children are growing up in an environment where they see this level of irresponsibility. I don't want them to grow up thinking this behavior is the norm.

I own a business that I founded myself 5 years ago. I have a steady, reliable income. I have a good, clean place to live (granted, I share a house with 3 other people; we all have our own rooms). I've never had any problems with violence, drugs, alcohol, mental problems, etc... I work a lot but spend two FULL 24 hour spans each week with my children... the time is completely about them... no work or anything... just them. If I had more days with my children, I would have to get daycare so I could work at least a 9-5 shift to continue making a living. To afford daycare, I would need to reduce support payments to help pay for it. If my children lived with me, I would gladly make any change I had to do in order for their lives or living situations to be better.

Things are fairly amicable between me and their mother at the moment. I've mentioned to her that I want our children to spend more time with me but that I need to sit down with her to discuss it in more detail. I have a feeling that as soon as I mention reducing support a bit to help pay for childcare will be a deal breaker with her. She'll just say "well, I'll take them back while you're at work so you don't have to pay for childcare". Honestly-I've never been a big fan of daycare (hence the reason my ex was a stay-at-home mom when we were together... my mom way a stay-at-home mom and I wanted my children to grow up with the same thing) but I REALLY think they're better off in a daycare environment than with their mom all day.

Anyone think I have a case worth taking in front of a judge? I live in a house with friends and don't have a 'dedicated' room that my children can live in at the moment. If I was able to get primary or sole custody, I would move into my own house/apt in a heartbeat so my children could have a better living situation. Would the fact that my children would have to attend daycare for part of the week hurt my case? My fear is that if I DO have to take this to court, she'll turn a cold shoulder and things will get REALLY difficult between us until the court proceedings are over with. I have to see her 4x each week (our children come see me for one 24 hour span at a time, 2 times per week) so it's not like I can lay-low until it's over and hope for the best. If I take it to court and lose, all I will have accomplished is stirring up bad feelings towards me from my ex and her family. I didn't have an affair or anything, but they still don't really like me because I divorced her. At this point, they tolerate me.

I promise you none of this is exaggerated... I re-read everything twice just to make sure.

Any input at all is very appreciated. Thank you for reading this incredibly long post.

[XenoSapien]

You most definitely have a case worth taking to a judge. Problem is that Uncle Sam backs momma 90% of the time.

XenoSapien

[Fr_Chuck]

I wish you luck, you do have a good case, but I will say with family court judges, it is always a "who knows" I have seen mothers who were hookers bringing men home living kids alone keep custody over the years so one never knows till they try.

[tawnynkids]

Got some questions for ya:
When was your last custody schedule changed? (You said it's been changed since the final of the divorce.)
And what did it change from and what did it go to?
Were these issues ever present prior to or during the divorce?
Has the teacher ever talked to you about the issue of absence or any other concerns regarding your child?
...

[JoeStone]

Got some questions for ya:
When was your last custody schedule changed? (You said it's been changed since the final of the divorce.)
And what did it change from and what did it go to?
Were these issues ever present prior to or during the divorce?
Has the teacher ever talked to you about the issue of absence or any other concerns regarding your child?
........

In the phase of the divorce process where visitation was decided upon, I had an inflexible work schedule and was only able to see our children for 36 hours on the weekend and 4 hours in the middle of the week. In actuality, I often was able to see them more and DID do so, although it wasn't officially 'my time' with them.
In January of this year, my income changed and I was able to change my schedule so they could spend 2 consecutive days per week with me (a full 48 hours in a row); this change was documented during mediation with my ex and is currently the official arrangement. Within weeks of making the arrangement, my ex and I agreed that I would keep them for 72 consecutive hours since I was living with my girlfriend and she (the girlfriend) agreed to watch them for me while I worked for 8 hours during the extra day. That arrangement worked great and continued until my girlfriend and I split in May... at that point we rolled back to 48 hours per week (the official schedule) and have been following that schedule since. Neither the addition of a day or rolling back to our official schedule was documented with the court, although I have a journal documenting most of the visits and changes.

When you're asking if the issues were present prior to or during the divorce, I'm not 100% which issues you're referring to. She lived with her parents after we split up and was working for them (under the table) on occasion. She didn't smoke or do any drugs until after the divorce was final. She DID have boyfriends over all the time and she did leave our kids with her parents for days on end. Come to think of it, I guess they all seemed to start as soon as we moved out of our apartment together (right around the time I filed for divorce). If you're asking about a specific issue, let me know which one. Her core personality hasn't really changed (she's always been selfish/flaky... hence the reason we're no longer together!), just the way she handles different aspects of her life has.

The teacher has never said anything to be about the absences. I'm sure I could ask her for a statement or records. Because it's an optional schooling (preschool) at this point, they may not be terribly concerned about it, hence not saying anything. The only reason I know that my ex rarely took her is from my daughter telling me that she didn't take her, and the sign-in sheet at the school.

Something I forgot to mention before: I've never missed a visitation time; I think I've been late once and I called well ahead of time to notify her. Whenever it's her turn to pick them up from me at the end of visitation, she's rarely on-time... sometimes hours late with little or no notice (she'll call right at the time when she's supposed to pick them up and say "we went out of town for the day and are still an hour away"). A lot of times when it's my turn to drive them back to her house, she's not home. Remember: she lives in her parents' garage, so they usually ARE home. I used to leave the kids with her parents because they said it was OK and they'd take care of them until she got home. I've heard from them that they've grown tired of it so I've stopped doing that... if my ex isn't home, I'll take the kids back to my house and let her know to pick them up from there. I REALLY don't want her parents to feel like it's ME dumping the kids on them.

It just really seems like the kids are an accessory in her life, rather than a responsibility. This is what makes me feel like the kids would be better off living primarily with me and visiting with her. I feel like I'm exhibiting a pretty strong sense of stability and maturity... especially compared to how the mother of my children is running her life. How do I relay that to a judge?

[tawnynkids]

The reason I ask if these issues were present before the divorce is because any issues that would deem her unfit now would really need to be new issues. If they were present at the time of divorce it could be argued that they were not enough of a reason to give you or for you to seek custody then so they wouldn't be enough for you to seek or to give it to you now. Understand?

As for the school, even though it is voluntary, it is still considered a part of her education. Mom not taking her to school when she is supposed to be there could be considered being unsupportive of her education and also an indicator of how her future schooling will be handled if left in mom's care. So I would get any records you can from the school showing attendance.

Mom not being there for you to drop the kids off is not reason in and of itself to change custody but will add to the list of reasons to find her irresponsible and unable to care for the children adequately. Write down all times you can recall of this happening, be as specific as you can. Dates, times etc.

The doctor appointments/health care, again, is another valid issue. This is actually a bit of a big one. Get any records you can from the doctor. The doctor should have made any noted regarding concerns discussed with you regarding the children. (ie rashes being due to uncleanliness) If the doctor has made no such notes ask if he can recall your conversations and ask him to put notes in the file regarding that.

I am not sure if you know but here in California whenever you file for custody or modification and it is contested you will both be required to attend a mediation ordered and set up by the court. When in this mediation you will need to address these and any other issues you have. And, very important, you state them as "concerns regarding the care of your children when they are with mom". You do not want to present a bashing session. Bring in all your notes and reports. You will not be able to present them (the notes at least) to the mediator but you can read off them. You may be able to present records from professionals to the mediator, I am not sure about that one. The best way to introduce any records from doctors or teachers would be to attach them as exhibits to your OSC for modification. Then they will be included with the file and seen by both the mediator and the judge for sure.

When you go to mediation, the mediator will attempt to have you and mom come to an acceptable agreement. You DO NOT have to agree to anything in mediation. The mediator may tell you though that if you do not agree what the judge will likely order. Their opinion on how they feel the judge will rule is not always the way the judge will rule but it will be based off their knowledge regarding how the judge has ruled in the past. If you and mom do not come to an agreement the mediator will write up their recommendation as to how they feel the judge should rule. 9 times out of 10 the judge will go with the mediators recommendation. If either party disagrees with that recommendation it will then become the responsibility to present a case as to why the judge should deviate from the mediators recommendation and rule in the opposing parties favor.

If you and mom agree before even filing anything the process is really simple. Write up an agreement on the court approved forms (let me know and I can tell you which ones to use) and you submit it to the court, it will be signed by the judge and you are done.

If you don't agree then it can be a very costly and complicated process. But not impossible. Do you have an attorney or plan to retain one? Does mom have one or will she be able to get one?

[ScottGem]

Why haven't you gotten the local children's services agency involved? I would immediately go and sit with a case worker and detail what you have detailed to us. The next time you pick up your daughters have the case worker waiting so she can see the condition your ex leaves them in!

You then get the agency file a report with the court as you petition for custody.

[JoeStone]

Tawny-thanks for the info. I feel like I'm familiar enough with the processes you're describing that I could handle getting mediation setup if necessary. There was a mandatory mediation session during the divorce proceedings that I had to attend with my ex... I would assume the mediation for this purpose would be almost identical. I handled everything in my divorce on my own... just did a lot of reading through the process. I bought an hour of an attorney's time towards the end of the process to get his opinion of my position on our community property issues. I could manage paying for an attorney if absolutely necessary, but I'm trying to avoid it for the usual reasons ($$$). My ex used the legal-assistance services available through the county gov't... Knowing what I do of her finances and her family's, I seriously doubt she will be able to get her own attorney if this ends up in court.

ScottGem-I've spoken with Child Protective Services (CPS) on several occasions about the issues I've outlined here. They've always told me that the problems I'm describing are in a grey-area between "Bad Parenting Style" and "Neglect" so it may be hard for them to be effective at intervening. They HAVE taken note of the fact that I've called with concerns though.

Reading many of the posts on this forum has been very educational as well. I know everyone's situations are different, but hearing the experiences everyone else has had with similar scenarios and the outcomes of them is encouraging.

I think the next step for me is to attempt to reason with her and talk my ex into giving me primary custody so the children can live with me and visit with her on occasion. It's not that I don't want her to be involved in their lives, I just don't think she's capable (at least at this point in her life) of being their primary care-provider. If that doesn't work, I'll move forward with Tawny's suggestions and schedule mediation. If something more drastic or a 'smoking gun' surfaces that I can use to employ CPS's services, then I'll go the route ScottGem suggested.

Thanks to all for your replies... I REALLY appreciate it. I'll let you know what (if anything) happens.

[ScottGem]

I can understand what CPS is saying, but there is a difference between intervene and investigate. If they investigate and confirm what you have told them, they still may not be able to intervene because of the grey area, but they can support your petititon for change in custody.

[JoeStone]

I can understand what CPS is saying, but there is a difference between intervene and investigate. If they investigate and confirm what you have told them, they still may not be able to intervene because of the grey area, but they can support your petition for change in custody.

Ah-Excellent point... thanks.

[NowWhat]

Everyone has given you good advice - so I have just one thing to add.

Document everything. The condition of the children when you pick them up - clean/dirty. If mom tells you it has been a while since they had a bath - document that also. Document if she is late. Everything.

Good Luck.

[bushg]

I would continue to call CPS, every time I saw something that I deemed unfit. You may get in touch with a case worker that is willing to investigate. I wish you luck , I really feel terrible for you and your children.

[Michelle0410]

With Proof You Will Most Deefinately Get Your Little Girls Out Of That Hell. Stability Is The Most Considered In Providing Children With The Best Welfare, I Disagree With Uncle Sam Backing Mother's Up 90%. In Today's Society That Is Not Tru I Have Seen It So Much Lately. I Legal Councils Have Finally Learned That Mothers Can Be Just As Much Dead Beats As A Man Can. You Should Have No Problem Just As Long As You Give Proof, Keep All Those Bank Statements You Had Showing Her Overdrawn Account, Manage Some How To Get Pictures Of How The Babies Are Living, Show Her Inabaility To Hold A Steady Job, Show All Of That To The Court And You Should Have No Problem. I Would Hurry And Do It Before Things Get Entirely To Out Of Hand And The Mother's Bad Habits Start To Rub Off On The Little Girls!!

[JoeStone]

Well-my first method didn't work out... I met with her tonight to discuss the idea of our children coming to live with me so I could offer them their own rooms, etc... (didn't go into too much detail because of two reasons: I didn't want to sound like I was bashing her and she didn't give me a chance). Basically as soon as I told her I'd like us to shift physical custody or at least have our children spend 4+ days per week with me, she blocked me out and flat out said no... wouldn't even consider it.

So I guess I have to take the harder route. I'm going to dig up my divorce book and go buy one of the Nolo custody books for more detailed info on the process. If anyone cares to share what form #s I'll need to accomplish this, I'd love to know them! From what I remember, I file a petition with the court and they'll assign a mediation + court date. One question on that (may be answered by the Nolo book that I'll get tomorrow): When asked for a Case #, do I use the same one I had for the divorce? Or do I leave it blank so they'll assign me a new one? The divorce was final late 2006 (less than 12 months ago).

Thanks again to everyone who replied...

[tawnynkids]

To file for modification of custody/visitation I am pretty sure you will need: FL-300, FL-301, FL-310, FL-311, FL-340, FL-341 and possibly FL-341(a), FL-341(b), FL-341(c), FL-341(d), FL-341(e). The use of a,b,c,d,e depends on how specific you want the order to be, what you want, and whether you want it in pre type form or if you want to put the stipulations of your order in your own words on a blank form. And blank FL-320, FL-150 or FL-155 to serve on her.
To modify the child support you also need: FL-150 or FL-155 (depends on what you qualify to use), FL-342.

I think this is all of them. It is at least most of them. And here is the site you can print them from: California Courts: Forms: All Forms
And yes you would use the same file/case number from your original order for divorce which included the custody/child support orders. Because that is the order you will be asking to modify, it won't be a separate case.

Hope that helps let me know. Or if you need any help filling them out, but sounds like you can probably handle that.

[JoeStone]

To file for modification of custody/visitation I am pretty sure you will need: FL-300, FL-301, FL-310, FL-311, FL-340, FL-341 and possibly FL-341(a), FL-341(b), FL-341(c), FL-341(d), FL-341(e). The use of a,b,c,d,e depends on how specific you want the order to be, what you want, and whether you want it in pre type form or if you want to put the stipulations of your order in your own words on a blank form. And blank FL-320, FL-150 or FL-155 to serve on her.
To modify the child support you also need: FL-150 or FL-155 (depends on what you qualify to use), FL-342.

I think this is all of them. It is at least most of them. And here is the site you can print them from: California Courts: Forms: All Forms
And yes you would use the same file/case number from your original order for divorce which included the custody/child support orders. Because that is the order you will be asking to modify, it won't be a separate case.

Hope that helps let me know. Or if you need any help filling them out, but sounds like you can probably handle that.

Thanks (again) for the info. Do I need to submit the FL-150 & FL-142 with the initial OSC filing? Or can I do it after a decision is made by the court?

[tawnynkids]

The FL-142 is for assets and debts which is only needed in the dissolution process. But the FL-150 would be file with the OSC and all needs to be served on her at the same time. The FL-142 is needed in part to determine the correct support amount.