Custody modification question


#1

I have a custody order in place through mediation. Over Thanksgiving, my children were with my ex-husband. My 8 year old called me crying b/c he had left them all day with his other son (who is 12) and his girlfriend’s daughter who is 16 and my daughter was trying to call him. She wanted to get him to come home for various reasons that were going on. He wouldn’t answer his phone. I call him-no answer so I called the girlfriend and asked them to call home because my daughter needed to talk to him. A few minutes later she called back in hysterics b/c he was going to spank her for calling me. In the middle of the conversation, the 16 year old yanked the phone out of her hand and hung up (I found out later she stuffed it down her pants so they couldn’t call again and shoved her head in a pillow to “shut her up” until she threw up) and I tried to call the phone she called from back, my ex, his girlfriend to talk to them to make sure they were ok. I called and called and after 1.5 hours I had to call the sheriff to go and check on my children. Come to find out the girlfriend doesn’t live there anymore and I didn’t even know where my kids were…The sherriff left him and his girlfriends messages. An hour later my daughter called. He did spank her (his reasoning to her was because she “used the phone without permission and got me upset for no reason”). Our custody order says they can call at any time and that he has to let me know addresses of where they are.

My kids are so upset that my daughter is having anxiety attacks and they do NOT want to go with him because they don’t want to go back “to her house” they say. I called Custody mediation and was told they can’t do anything but request to go back to mediation, I even called child protective services for the pillow incident and just the mental stress and abuse they are going through and they told me “it’s not child endangerment we can’t help you”.

He was put in prison in December so I didn’t have to continue the mediation request (mediation told me that) and the kids didn’t have to go with him. He gets out in June. What can I do now to ensure they are safe and don’t go through this when he gets out? I can’t wait for mediation as he would have to agree to the papers they send him in the mail. By that time they will have had to go with him. Can I file something through the court system? This is just the last incident. I have 2 years of documentation from other incidents and issues.


#2

I suggest you file a motion to modify custody based on the change in circumstances. If your ex is in prison there is a high likelihood that whatever activity he engaged in that ended with his incarceration makes him unfit to care for your children. That coupled with the incident that occurred at Thanksgiving lead me to believe the children are unsafe in his care.


#3

Is that something I can do on my own (file the papers)? I have never had a lawyer and can’t afford one. Mediation for custody never went in front of a judge. Can I do it now while he is there or do I have to wait until June when he is released? He was put in prison for receiving his 3rd dwlr and it brought back his 2nd DWI charge (based on probation violation). Thank you so very much for your help!


#4

sorry…reading my reply seemed confusing. There is an order in place that is signed by a judge, we just completed the order in mediation without having to go to court.


#5

You can file a motion to modify custody on your own, however I recommend that you retain counsel of some sort to help you navigate through the court system. You can and should file your motion now, you do not need to wait for him to be released.
I recommend you contact the legal aid office in your county, they may be able to help you.