Change from joint to sole custody


#1

This is very long so I apologize in advance. My fiance has been separated from his ex-wife for over 3 years and divorced for about a year. While they were married his ex did many crazy and questionable things, she is known far and wide to be incredibly manipulative and will take advantage of anyone she can get her hands on. She routinely did not pay the rent on houses they were renting for months at a time despite his check being directly deposited into their joint account. This resulted in them having to move numerous times. Every time it would happen she would lie and said she had paid, etc, etc. She misreported their taxes for three years, cashed the checks and then hid the bills that came from him so he didn’t find out about this until his wages were being garnished for over 10K in unpaid taxes. She opened a credit card in his mother’s name, she illicitly cashed his sister’s tax refund check and had it deposited into her account and she was even arrested for felony fraud when she attempted to wire transfer 100K from her employer to herself and got caught. He stayed with her for many years because they had two children (they got married because she got pregnant) together (7 and 10) that he loves and he was genuinely afraid of what she would do if he tried to get out.

Anyways, he left her over three years ago and since then they have shared the children jointly although he voluntarily pays her child support and all of their expenses despite their incomes not being grossly all that different. After their divorce she was fired from her job (we are pretty sure for stealing money again) and decided that her life’s calling was as a bartender at a local pizza restaurant. She also started dating the first in a very very long string of men that she would bring home to sleep over when the kids were there so that there was some random guy sitting at the breakfast table before school every week. She works many nights a week until 3am and we happily keep the children then. This is highly unfair however as whenever we request a certain night for her to take care of them she complains and insists we give her money for a babysitter. My fiance and I have been living together for several years and the children have resided way more than half time in our home for about the last two years. My job is pretty flexible right now so I (their “stepmom”) end up being their primary care giver. I take them to the doctor, I go to their parent-teacher conferences, I plan their birthday parties and I do not share these responsibilites with their “mother” who is really not interested in anyone but herself. I love those two like they are my own and their father and I will be married in about two months and plan to expand our family more.

She is more than happy for them to be with me alone when it facilitates her doing what she wants and has never complained except when we asked to spend Christmas with them this year (she has done so the previous two years). She said nothing to us but to the two of them she ranted and raved about how she was their mother and how she would never let them spend Christmas with us and how they were breaking her heart that they even wanted to and how could they do this to her, blah blah blah. They cried for days about this and were terribly guilt ridden. Similar episodes of similar emotional blackmail occur routinely.

She remained in their marital home and my fiance paid the mortgage in full for one year. She requested that he pay her the money and then she would pay the mortgage. She never paid and after six months he received notice that the house was to be foreclosed upon. He then had to hire a real estate attorney and incur significant costs to save the house. When she finally moved out we found out that she had not paid the water bill in a year and would go outside and turn it back on every time it was shut off. He had to pay almost $1000 to have the bill cleared. She also left most of her things in the house. He paid someone to come and pack up her stuff, rented a climate controlled storage space, and had the house cleaned. The people who came said they had never seen anything as horrible as the house. Food had been left out for days to weeks with maggots and other bugs crawling all over the counters. This is where the children had been living unbeknownst to us. He did all of these things because doing so was easier than dealing with her and her nothing is my responsibility attitude. Also, he just wants the kids to be safe and has hoped that at least a small part of the nice things he does for her will trickle down to them.

She then moved to a house that was owned by a friend only to get evicted less than a year later because she did not pay the rent. At this time she moved with the kids to a neighboring town which was 30 minutes away from their school into a house where her 28 year old boyfriend lived with a bunch of his buddies. She did not ask us if this would be ok or even tell us she was going to do it. The kids were sharing a room (one is a boy, one is a girl), the girl was sleeping on a pull-out couch from a thrift store with no sheets such that she got a terrible rash all over her body from being bitten by bugs while she slept every night. The other people living in the house were young and single, would stay up late every night drinking, doing drugs and smoking cigarettes while the kids were in their room trying to do homework or sleep for school. She had only been dating this guy for about 4 months at this time and had previously broken up with him due to his use of illegal and illicit substances (including high dose narcotic patches that he brought into the house in cigarette boxes and left in reach of the kids). She informed us she was not concerned about his daily use of marijuana and brought him right back into the house with the kids after he was hospitalized for a week for acute alcoholol withdrawel seizures.

Finally this past December she and the boyfriend moved into a house closer to town. It seemed she may be getting herself together and she was asking to see the kids more. Everything listed above was obviously really scary and concerning but we really wanted to respect her right as the kids’ mother and try and let her have them some. Not to mention the fact that she is very volatile and we were afraid of what would happen if we even criticized her behavior. Anyways, last week her boyfriend started drinking and doing drugs again and she kicked him out. I must mention that she told the kids she was going to do this days before she did and then instructed them to keep it a secret from us. She was nearly incapacitated with the “loss” of this juvenile guy she was not even dating for a year. She cried openly all through her own child’s birthday party (again, planned and paid for by us with no interest of involvement by her) because she was just so grief stricken about this relationship. Three days later she attempted to take her own life by taking massive amounts of sedatives and muscle relaxants. Before doing so she text messaged my fiance to say that he and I were better parents than she is and the kids would be better off without her.

Sadly, she was released from the hospital after only about 18 hours and has no intention of seeking any professional help or counseling. We have been keeping the kids with us since then due to our concern over what she may do or say to them if/when she sees them. We want full custody of the kids given all the other stuff that has happenned and the new evidence that while in the hospital last fall for withdrawel her boyfriend overdosed on narcotics that were brought in by friends and required being put on life support. She had hidden this from us as well as the fact that he had been hiding alcohol under her 10 year old’s bed recently.

As I said, we are getting married in two months. We both have steady good jobs with insurance for ourselves and the kids, own our home and two cars, never miss any payments are are good and stable parents and role models for the kids. We have no intention of keeping her from seeing them but we feel that supervised visitation with a third party present would be safest for them at first. Again, she is not seeking any sort of counseling in the wake of her suicide attempt and informed us last night that she wishes she had just died, and that she still loves the boyfriend and would do anything to be with him. Despite these statements she thinks everything should just go back to normal and the kids should be spending nights with her and whomever she brings over and is accusing us of trying to “take her children away from her”. We have also been informed that she has not been paying her rent on this new home and is in danger of being evicted imminently. We want her to get better and get her life in order. As much as we have disagreed with so many of the choices she has made in the past we never asked for sole custody before because we were hoping she would grow up and start making better choices.

The catch is as follows: for the next four months, starting March 1st, my fiance will be living three hours away as a mandatory part of his job. We will see him every weekend and he will never have to live out of town again after he returns at the end of June. He does not travel at all for work and is home every night with the kids otherwise. This is mandatory, he did it last fall and during that period the kids spent half of their nights with me alone and the weekends with their father and I. This was a fine plan last year and she never complained about it. She has also known for over a year that this would be happenning and that we would carry on as we had previously where I would watch them at least half the nights of the week so she could “work.” It is no one’s fault that she chose this time to make a choice that has forced our hand into feeling it is in the best interest of the kids to being in our sole custody but when we spoke with a lawyer this morning she said that since he will be out of town he is in danger of losing even joint custody of them. This is despite all of the above atrocities committed by their mother, her complete inability to care for them even sometimes let alone full time and the fact that she knew this was happenning, is mandatory, temporary and will never be repeated. She advised that we wait until he returns home to file a motion for change of custody.

Is this good advice? Do we have any other options? Would it help if we just got married right now instead of waiting? What the heck are we supposed to do while he is gone? I just can’t imagine how anyone would think it was in their best interest to be with her especially when there is a stable and loving home waiting for them. Also, his sister and her husband live about 5 miles from our house and can help me while he is gone and we have hired someone to help us full time if necessary so that the kids never have to be alone or juggled from person to person.

Sorry this is so long but we really are scared and desperate. We love them and have witnessed for years the damage she has done. We don’t want to subject them to this anymore. We would appreciate any advice you can provide . . .


#2

I would suggest the motion be filed now. Depending on the county, the motion may not even reach the trial calendar for 4 months. Based on the circumstances, it may even be appropriate to file an emergency motion. The children are not safe with her, and may not even have a place to live in the near future if they remain with her.


#3

Thank you so much. We live in Durham county if this gives you any more information. As for the emergency motion, how do we go about doing something like this? It would just be temporary until a formal motion could be filed right? Do we need to go ahead and get married? Will that help us?

Is it true that we are seriously jeopardizing ourselves because their father is going to be out of town for 4 months. Do you have any advice on how to go around this.


#4

Yes, if an emergency motion is granted it stays in place for no more than 10 days. A time for a return hearing will be set within 10 days, with notice given to the other side, who will have the chance to present their side of the case at that time.

In my opinion getting married sooner will not change the situation.

As for the father being out of town, I do believe it presents a problem if he cannot provide care for the children for 4 months.


#5

Thanks, glad we don’t have to get married earlier than we had planned.

So I will be providing care for them in his absence and he will be with them every weekend (2-3 days per week). That was what we had planned on doing before all of this happened anyways as they really were only with their mother 1 or 2 nights a week by her choice despite their joint custody. This situation was perfectly amenable to her before. Will we lose anything (other than being terrified every time they are with her) by waiting to file the motion until after he gets back? Their custody was determined without court involvement last time so we won’t have to prove a significant “change” of circumstances right? The court will just look at the situation as a whole and determine what is best for the kids since they will be seeing all of this for the first time?

Also, if we are granted sole custody of them now, what will we have to do if and when we decide to move away for job related reasons?


#6

I suggest you file now. I will be hard to argue that the mother’s actions are a danger to the children if you wait around for months before taking action. If the custody is in an order (regardless of whether it was done by consent) you must prove a substantial change in circumstances has occurred. Based on the facts you list, I don’t see this as presenting a problem.

If are granted sole custody, you will still have to seek a modification later on if you wish to move far enough away that the mother’s visitation would be impeded.