Ex Parte and Husband out of Country

Also, she has a history of only keeping the daughter when it’s “convenient.” When he had to go to Haiti in 2004 for 8 months, he had to send his daughter to live with his sister, because the Mom said she didn’t want to do it. So it’s not like she’s been a super-mom all the time before. And the daughter not going to the doctor for two years - CPS said every child should have at the least a well-child/physical once a year. I know my children do. And we got a letter from the insurance company (he has Tricare Prime which means the Mom will never ever pay a penny out of pocket, so finances don’t have a role in this) confirming that she hasn’t been seen. Also, he willingly paid $425/mo starting the month he left for Gtmo Bay as part of the Care Plan because his command required that he ensure his daughter’s needs would be met. He still paid that $425 until he picked her up, and only then did he stop it.
So he’s been very involved, and the mother caring for her was only ever meant to be temporary because of his military orders. She didn’t fight him taking her out here, she only started fighting it after a few days, too. She admitted things were a mess at home and then I guess she changed her mind and now he is being taken to court, and the worst is his daughter is stuck in the middle of it all. The mom told the daughter on the phone that she was going to “make the cops come get you so your Daddy can’t see you ever again” and of course the daughter was a messed and so upset. Lots of mental games and it’s so unhealthy for a child so young.

Dear ivyalmighty:

Greetings. I am going to tell you the same thing I just told the last person - brief posts and one or two questions each. This is too much for me to read and still answer everyones’ questions. Based on what I read (about the first paragraph) here is what I can tell you:

Once he left the child in her care, even for just a couple of months, that was a change of circumstances and when he gets home it is unlikely that the court will make the mother relinquish the child. The best interests of children is generally to have a stable, secure, one-place home environment. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

My husband has primary custody of his daughter (my stepdaughter). He was granted this during the separation. When it came time to finalize the divorce, he had just been given unaccompanied orders to Gtmo Bay, which meant he could not bring his daughter. He drafted up an amendment to the separation agreement, which would allow his wife primary custody because of this deployment (18 months). When they got to court, the judge said he couldn’t incorporate that new agreement, if they wanted the divorce that day, he would have to incorporate the old agreement which left my husband as primary. He was allowed to talk to a lawyer in the court room who told him this wasn’t the proper course of action anyway, since the care for his daughter was only temporary, he didn’t want to permanently change over custody. So, the divorce went into effect with him as primary, and a “care plan” was drafted up and notarized that allowed his wife to care for his daughter during the deployment, AND ALSO allow her to drive his 2001 Altima while he drove the '89 Jeep, which was the OPPOSITE of what the divorce decree stated, but he wanted his daughter to be in a safer vehicle and the care plan specifically states that. ONce he came back in August he found out he would be leaving for Iraq in only 7 months and the Mom seemed to be doing alright (with a diagnosis of major depressive disorder, and sexual addiction, two suicide attempts and not on meds or counseling, he was leery of leaving her there in the first place but had no choice.) SO, he left her with her mother, but during their weekly phone calls his daughter (6 yo) began crying constantly, saying she didn’t like the live-in boyfriend, and just generally seemed unhappy. Then he found out the boyfriend had physically abused the mother and his daughter had seen it. After Xmas things were so bad and she was so emotional and unhappy that he felt he had to do something. When the Jeep was shipped back from Gtmo, he had it shipped to the Mom and she accepted it. She traded it in for a newer car. Then he went to pick up his Nissan and his daughter (we now live in CA, this all occured in Jacksonville, NC) on 9 Feb. The Nissan, because the decree stated it is his, and his daughter for the obvious reasons. He brought her back to CA, but not the car because the mom called the day he was supposed to fly out (originally he was flying out and then driving back) to say that the engine was a total loss (remember it’s a 6 year old car) and was undriveable and she had just found out that day. So he still picked up his daughter, called CPS because the house was filthy and because Mom was in a depression (he knows from there marriage how she looks/acts and it was obvious) and came back to CA. Daughter was enrolled in counseling ASAP, and also we found out that she has not been to a doctor in two years - since the exact time she went into her mother’s care. CPS thought this was a big deal, along with the allegations of abusive boyfriend and Mom working 2-3 nights a week till 2 am while an older sister (14-15) cared for Elissa.
Mom went before a judge in Jacksonville and was granted an ex-parte temporary custody order, based on her words that my husband had “little to no contact” with his daughter and that the unincorporated separation agreement was a legal document they should be abiding by. The judge granted it! Not knowing there is an on-going CPS investigation - which the social worker out here was very alarmed, and tried to talk to a court mediator to halt the ex-parte order but apparently in NC there are no mediators and the judges are only in Mon-Wed for family issues. So, he had to return her today, as he leaves for Iraq on SUNDAY for seven months. Conveniently, the Mom also asked for the hearing to be held in two weeks, knowing he would be out of the country. Meanwhile, CPS in CA is saying they will mandate that if she must stay with her mother during this time, she (the daughter) must attend counseling on a weekly basis and report to CPS, because she also told us and the social worker that her mother won’t let her write letters or call her father and she “gets angry” or “spanks” her if she talks about missing her father or asks to write to him. We also have the phone records showing that he called every Sunday without fail, and there are only three calls ever coming from the mother to our phone, and they were all on weekdays during school hours so they couldn’t possibly be for daughter to talk to Dad.
My question (after all that history!) is… how in the HECK can a judge grant that order based on nothing but a sob story with no evidence??? I can just walk into a courtroom and throw some words and get a temporary custody order? I’m positive a judge wouldn’t have granted the order had he known that she was currently being investigated by CPS, and shouldn’t he have at least asked for phone records (which we have ready, and I know she can’t possibly have because her credit is so poor she only has one of those cell phones that you have to buy phone cards to use) if she was claiming the daughter had “little to no phone contact.”??? Also, that he based her custody claim off an agreement that was unincorporated in the divorce decree?
We have a lawyer in Jacksonville and she says we have no choice but to ask for a stay for the hearing on 6 March until he returns in mid-October. I read that in circumstances like this, if the attorney comes in court the plaintiff (my husband) can appear on video conference or by telephone, but the lawyer says this isn’t true he absolutely MUST be at that hearing, or they must stay it. We don’t want to wait seven months to show the judge that she lied, and that even moreso she’s currently in contempt of the decree (going by either separation agreement she’s violating it - the incorporated one because she has the Nissan which my husband should have, and the false one she showed the judge, because she sold the Jeep which according to that agreement should have been his!) and the concerns of the CPS workers… And most importantly we don’t want to wait seven months for his daughter to endure the emotional abuses of her mother alienating her from her father.
It’s crazy that we even have to go and argue for custody, when he IS the primary custodian!!!