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Father with 50/50 parenting plan suddenly faces mother's request to modify custody based on lies

Your Question:
Got divorced one year ago. Ex and I agreed on 50/50 custody and it was in the divorce decree. She has the kids one week and I the next week. We have a 6yr old daughter and 3yr old son. I got served papers and she wants to change the custody. Her reasons are: daughter gets upset about leaving mom and going to dads(she claims daughter has been sick a few times because of it) Claims I dont help daughter with homework, I got daughter to school late last year about 3 or 4 times(5- 10 min) she also mentioned this. My daughter used to like taken showers with me(once every 3 or 4 months)(I know this sounds horrible, I told my daughter before she turned 6 that she was a big girl now and had to take baths by herself) She says I interfer with her ability to have phone converations with the kids when they are with me. She thinks we should be waiting by the phone every minute in case she calls. I have the kids return her call everytime she leaves a message. Claims I have not maintained a stable home environment for the kids. Claims I have created a hostile envirnment towards her. Claims I have not provided advance notice of my moves(I've only moved once and she knows the address) Any thoughts? I'm a little worried about losing my kids, but I almost want to say prove all these claims, prove that I'm an unfit father. Am I being too confident? She pays me child support and is also asking to reduce that along with the custody change. She is a multi-millionare. She is also a control freak and I think that not having control of the kids and the rules of my house finaly pushed her to these extreme measures. I am engaged and my kids love my fiance. My fiance picked my daughter up from school the other day and my ex was there, fiance said my daughter was excited to go with her and basicly just said bye mom see ya later. I think this has somethng to do with all this as well. I want my kids to spend half of their time with their mom, they need their mom. When my ex moved in with her boyfriend(now husband) my daughter walked in on them in the shower, ex never talked with my daughter about it, daughter came to me upset and confused. I didn't get upset, I just called my ex and told her what daughter said and suggested that she talk to her about it. Any thoughts on all this mess? Thanks

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My Answer:

Thanks for writing. You further specified in a subsequent email (not posted) that the mother provided no evidence or supporting affadavits.

Remember I'm not an attorney, but I don't think you have much to worry about. But I do think you need to aggressively respond to this.

Because the mother has money, I'm assuming she has an attorney or will hire an attorney for the hearing. I think you need an attorney as well. The mother doesn't have much of a case, based upon what you wrote, but you're still at a severe disadvantage if you don't have an attorney at the hearing. If mom hires a slimeball lawyer, there's no telling what tactics that person may try to employ... and you need someone to protect you.

Of everything you wrote, the only item that may give rise for concern is letting your young daughter shower with you. While this may be common in many households, it can be twisted and distorted in family court to insinuate you're a budding pervert. So, you need to explain it away before it goes to a nasty place (see below).

I suggest you craft a response declaration (i.e., with the help of an attorney) akin to the following:

    1. Mom provides only unfounded opinions and speculation. She offers no evidence or expert testimony warranting a change of custody only a year after parties entered into final orders for the existing custody arrangement.

    2. This action is frivolous with absolutely no merit. I request that my attorney fees be reimbursed.

    3. To ensure the court is not swayed by distortions and misrepresentations, I provide the following responses point-by-point to the mother's allegations about my parenting and my home:

      A) It's true that when my daughter was younger, she would occasionally join me in the shower. This was while the mother and I still lived together, and the mother was wholly aware of this bonding opportunity between a very young child and the father. As my daughter is now 6 years old, it would be inappropriate to engage in such behavior. My daughter bathes by herself in my home, as she has for the past year.

      B) Much like most parents can't avoid on rare occasion, I have occasionally been five minutes late bringing my daughter to school. Attached as Exhibit A are my daughter's attendance records for 2004/2005. Routine tardiness is not a problem.

      C) While the children are in my care, they speak to their mother daily by phone. If we're home when she calls, the children talk to her. If we're out of the house when their mother calls, I always immediately call back upon receiving her messages. It's normal and reasonable to simply leave a message and shortly thereafter get a return call, and most parents don't seem to create a crisis out of it. If still a concern to the court, I'd request court orders to allow parties to record the phone conversations between the other parent and the children. This is the only way I can demonstrate that the mother is misrepresenting the situation.

      D) I always ensure my daughter does her homework. Attached as Exhibit B are my daughter's progress reports from kindergarten in 2004/2005. Clearly, she has been doing great in school, with no mention of missing homework. This also speaks to the current arrangement working well for our daughter, as she excelled in kindergarten despite it being so soon after the divorce.

      E) It's true that I moved residences during the past year. I moved 4 miles (or whatever) away from my prior residence. I notified Mother a few days before I moved, giving her my new address. I'm clueless as to why this was a crisis for Mother. The action before the court is the first time I ever knew that Mother wanted far more advanced notice for reasons still unknown to me.

      F) I'm unable to testify as to what happens in Mother's home prior to me picking up the children. My daughter has never been upset when I've picked her up, so I now wonder about the pressures that Mother may be putting on her. Above all, I find it highly suspect that instead of perhaps seeing therapeutic help to determine why our daughter is exhibiting this behavior - if what Mother describes is truly happening - she simply filed this action. It's quite possible that our daughter is responding to the Mother, but a court has no ability to assess the cause of this common behavior in children of divorce. I'm not sure why Mother picked a judge over a therapist, if she's truly concerned about our daughter.

      G) Mother's testimony about what occurs in my home is completely unfounded and speculative. SMother has not set foot in my home in the past year, so she can't testify as to what happens in my home.

    4. I suspect that the real reason this action is occuring is because Mother recently discovered that I'm engaged to be married. While I understand the emotions involved (given that Mother is already re-married), it's completely separate from focusing on the children's welfare.

    5. I know it's tough on children to go through a divorce, and I've been extremely sensitive to their needs. I'm very supportive of their relationship with their mother, regardless of what their mother thinks. I'm not asking to modify custody in any form because I believe these kids need both their parents and the current arrangement has served them as best as possible after the failed marriage. It would be a tragedy for our children - just as they're getting accustomed to their new way of life - to have it all scrambled up again. I only wish Mother could embrace the same attitude about co-parenting.

    6. Mother has assets that exceed $X million. She has the luxury of filing such frivolous actions without even providing a shred of evidence for her position. Win or lose, she doesn't feel any financial blow. I simply can't afford this complete waste of time and resources, and it steals money I need to care for our children. I request that Mother be ordered to reimburse all attorney fees and costs I've incurred due to this ridiculous action.

So, that's how I'd respond. Don't worry about slamming Mom... your assumptions and lack of evidence about her would only put you in the same pitiful light (in the court's eyes). Instead, come across as Rodney King, "Can't we all just get along?"

But get an attorney to make sure you respond in the best manner possible.

While this is gonna be a bit stressful and may cost you some money, if she doesn't drop it and if a court rules against her, it's actually a very good thing for you. You'd have on record that she went for sole custody and lost. At all future hearings, you will bring that up, and it will reduce her credibility before the court at subsequent hearings.

Incidentally, my own daughter's mother recently tried for sole custody and to eliminate overnights in my home with much the same venom and false allegations as you describe. My response was comparable to the above. She had an attorney, and I didn't (but I've been doing this for more than four years and have had three attorneys until 2005, so I'm feeling comfortable at this point). Her attorney ranted and raved to the point that the judge interrupted and said, "Yeah, Dad's all evil and Mom's perfect, I got it." I essentially had the calm attitude of "This is all ridiculous. Where's the beef?" Court heard and denied all of her requests within 10 minutes.

So, again, don't take this lightly, but don't be too worried. See it as an opportunity to destroy her credibility in court, which will aid you tremendously in the future.

Good luck, and please let me know what happens.


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