Custody mod to dad? Is it realistic? Ex refuses to cooperate


#1

My son’s mom was granted primary custody when he was 6, on the basis that he was struggling in school. Findings of fact were that she had a flexible schedule as such was more available than my 8-5, to offer stability and additional time needed to help him succeed in school. I also did not have funds for representation and had to proceed Pro Se. However he is now 10, since the change she is and has been working long hours, and has everyone under the sun taking our son to and from school. She does not need to work this hard, she has chosen to do so. My wife and I have been very involved in his school for the past 2 years and done as much as we could the limited visitation schedule. The school had commented that there seems to be a lack of stability, but as usual she does not take the school seriously. The school has also suggested issues such as hyper-focus and anxiety. “Oh he’s fine” “just push him” is her reply. She has been completely unable to work around my visitation, constantly needing to change her weekends or occasionally just taking my weekend visitation all together. To me this is counter productive to his stability. He is still having difficulty in school and when transferred to a new private school, they would not admit him at grade level unless we agreed to sign him up in an all year tutoring program ($10,000!). She refuses to consider learning difference testing and refuses to work with me on possible changes in our visitation schedule to help provide more foundation. My son is/has been voicing his preference to live with me and my wife. My concern in seeking modification to custody is that a judge might see this just as she does, insignificant. This is an expensive venture so I need to know realistic chances for any change? realistic chances for a complete modification of primary custody?


#2

Father…I am just beginning the same process, though for slightly different reasons. I am asking for 50/50 custody, as the ex has consistently shown inflexibility, lack of communication and what I would classify as “instability” for the kids because of her work schedule, etc. I would be interested in people’s opinion on this and what our chances are of getting more visitation or even custody.


#3

ready2divorce - I have researched 50/50 custody and found that unless this is agreeable to both parents, the courts will not order it. The courts position is that if two parents are unwilling to work together, then they will not force them to. That said, based on the issues you’ve noted, it would probably be best that you have primary custody. Do be sure to have an attorney, I would not advise moving forward without. Litigation is not something you can just pick up, this was a painful lesson for me. All that aside, an attorney would be the best person to indicate your chances. Hope this helps.


#4

Off Topic to OP:
Which has always been interesting to me. The majority of conflicts are petty and control issues and some parents will purposefully not get along with the other in order to keep control.

Parents are divorced for a reason. They don’t get along! 50/50 to me makes MORE sense most of the time. Exchanges happen at school parents don’t have to see each other so less chance of conflicts. Day to day decisions made by the parent with the custody at the moment. Major if not agreed on can be mediated with a 3rd party. If court action needs to be taken for a judge to decide maybe the losing party should have to pay the fees associated. I think parents would find themselves wanting to actually co-parent then and not find a way to stick it to the ex.

Back to the question:

I think when going for custody you should fight for full custody off the bat. Use 50/50 as a compromise. In these situations it’s best to aim high so there is room for negotiation.

It sounds like a good shot at custody because the child’s circumstances have changed and mom is not following the order as far as visitation goes. I’m sure Erin will be along with the legal answer. This was court ordered custody and not agreed upon by separation agreement, correct?


#5

4them - yes, this was court ordered custody.

BTW, you have a great take on the 50/50 split. I hadn’t considered it that way, but you are right on all counts. Divorce indicates parents don’t get along, that said I feel strongly that if a Judge were to order us to 50/50 the second time around then the ex would be more likely to follow the order, especially if a return visit caused the loosing party to pay for opposing councel. You are also correct in that she does not work with me so that she can maintain control. Many of the issues she has created served nothing more that to show me I can’t stop her. She knows that legal funding is an issue for me and does not expect that I can do anything to change the situation. This is a refreshing position, thank you.


#6

[quote=“fathernson”]4them - yes, this was court ordered custody.

BTW, you have a great take on the 50/50 split. I hadn’t considered it that way, but you are right on all counts. Divorce indicates parents don’t get along, that said I feel strongly that if a Judge were to order us to 50/50 the second time around then the ex would be more likely to follow the order, especially if a return visit caused the loosing party to pay for opposing councel. You are also correct in that she does not work with me so that she can maintain control. Many of the issues she has created served nothing more that to show me I can’t stop her. She knows that legal funding is an issue for me and does not expect that I can do anything to change the situation. This is a refreshing position, thank you.[/quote]

DH’s ex is like that as well so I know what you mean. I also see that 90% of the conflicts would go away with them not having to deal with each other as much. Restricting her access would keep my skids from having to watch her fly off the handle a few times a week. You can’t “co-parent” with someone that refuses. I’ve watch DH try for years. It doesn’t work.

Do NOT give up! Fight Pro Se if you need to. Do your research and learn the laws and statues. NC is very big on toting “Best interest of the children”. Present a very strong case and the benefits for the children. Make her prove why it’s NOT in their best interests.


#7

Based on the facts you list there has indeed been a substantial change in circumstances affecting your son, and a modification at this time sounds as though it would be in his best interests. I would certainly recommend that you proceed with a modification to ensure your son can regain some stability. He is at an age where stability is crucial, and I am sure a judge would consider all of the factors you list in making a ruling.