Court vs Mediation-Help IAAL--anyone

[NYMOM]

Please see my earlier postsEarlier Post

I am so tired of my step-sons bio-mother's games. She has agreed to and is more than willing to go to mediation so that we can have my ss more than half the time. We would have him Friday through Thursday on our time plus keep him the following friday through Saturday morning plus every Tuesday. Which is fine with us, we wish he could be here all the time. We even agreed to give her $100.00 month for the time he is with her. We asked that we be able to alternate years for the tax credit and she said absolutley not...I will still have primary residence so you can't do that. We have been trying to do this through talk and having the papers done through mediation but she won't give even a little on the things she wants. We have agreed to send him to day care three half days a week because this is what she wants. We have agreed to the $100.00. We agreed to keep him every friday (not that we mind) as a favor to her because "friday is her night out". We have agreed to keep him the entire month of July because she wants to go away with her new boyfriend. We have agreed to keep him even on her Tuesday with him because she has things to do that day. She will not give an inch on anything. Should we just go to court??? I was thinking perhaps we should go through with the mediation and suck up her "rules" and after a few months go to court to see if we can get the other things changed. I thought that would show she didn't have a problem with the joint physical custody itself? Please help..any opinions will be appreciated. We are just trying to do whats best for this little boy. By the way my husband feels the same way he's just not a computer person

 

[I AM ALWAYS LIABLE]

My response:

I wrote you a lengthy reply to your duplicate post of this one, and then you must have deleted that duplicate post right along with my response. Sorry, perhaps someone else will come along and respond.

IAAL

 

[NYMOM]

please help

 

[jlc614]

From the sounds of it she is only concerned about the money. I would go fo the mediation agrrement so that you can prove that she doesn't have a problem with the actual physical part of the agreement and that she is just concerned with the money. It couldn't hurt to go to a lawyer for a consultation though.

 

[Query1234]

hang in there

We had a similar situation with my husband's ex. She had primary physical during the school year but the actual visitation schedule was us having the kids 65-70% of the time year-round while she only had them 30-35% of the time. She got to claim both kids as on paper that's what it said. I kept a journal/record book of all the days we actually had them and we maintained the schedule that she "allowed" us to have for 2-3 years. We finally decided to file a motion with the court last year to change the paperwork to reflect the actual visitation schedule the children had been used to for so long as we had an issue with the ex fighting us on a school we wanted to send the kids to. The matter never went to court. It was resolved in mediation. When my husband went in with a calendar highlighting all the days we actually had the children as opposed to what it "should've" been, the mediator basically said to the ex, "if it ain't broke, then don't fix it". Ex basically realized that she'd shot herself in the foot by "letting" us have the kids so that she could go out and enjoy herself and just went along with the changes. Now we get to claim one child and have 50/50 custody year-round. She was upset about losing one of the kids to claim but she really had no real say as the evidence spoke for itself. The only downfall was that we no longer get to have them 65-70% of the time as we used to before but they get to go to the school that we wanted them to and she still gives up her days occasionally if she has something "better" to do. I still keep track of those dates just in case we might have to go back to court/mediation.

I live in CA so I don't know if this matter's any different in any other state but I recommend that you keep a record of all the dates that you actually see your stepson and note also if those dates are ex's days or your days as her giving up her days is an obvious sign that she doesn't care enough to want to spend all the time with her child as she may on the surface proclaim she does.

 

[ellencee]

NYMOM

Pull out those mediation papers and see if a provision for modification exists. If not, then file suit for a change in custody and request mediation; it's faster, more cost-effective, and is just like a mini-trial.

The bio-mom will not be a dictator in the mediation setting, and your fiance won't be sucking up anything.

But let's look at this: Are you and he living together and not married? If so, don't you think you need to make a trip to the marrying judge first, or the preacher? This child needs a home, a conventional home, with married parents devoted to each other and providing a home for the little guy so he can grow and reach his full potential. All the therapists in the world can't give him what a conventional family life can give him.

This little guy needs to be checked for allergies that could be causing his ear problems, his hearing loss, and his behavior problems. An adorable little girl I once knew had these problems and they were allergy related. She was practically deaf, but no one knew because to her, it was normal, and she adapted to the best of her ability. She received desentizing injections for several years, speech therapy for several years, and now she is a beautiful young woman, about to graduate from college.

This little guy needs stability--the same bed each night, allowing for visitation; the same daily routine each day. Poor little fella; all he knows is chaos, and everyone wants him to behave! Based on what? Inconsistent good parenting mixed with inconsistent bad parenting.

Go for--get in to mediation and help this child.

 

[NYMOM]

Thanks to all for the replies. Ellencee....we are now married and I should also let you know that I have a 3 1/2 yr old son myself. I am changing to a per diem position at work so that I can be home more with both children. My step-son has a bed here and a closet full of clothes and toys. He is here with us most of the time. Bio-mom has no problem with us having him more...she just demands that we continue to pay her support and she gets the tax credit or she will fight us. We are willing to do whatever it takes to help him but I just don't think it's fair that she should only have him 30% of the time or less and still be paid child support and receive the tax credit. We even suggested alternating years.....absolutley not was the response. We have invited all the therapists to our home and they have all made arrangements to come here. Everyone that we have talked to...lengthy conversations have also said that the feel much better about our relationship and our home then the bio-mothers.

 

[ellencee]

Congratulations!
I sense a much calmer person than the original poster!

 

[NYMOM]

Sorry ellencee I forgot to answer one of your questions. The mediation agreement does say they can return if either ever needs to change the agreement. Will they help us with the support/tax credit situation. I just don't know whether we should go to court or not. What does anyone think about what jlc614 said about going with the mediation agreement for a while and then going to court if she is unwilling to comprimise.

 

[ellencee]

NYMOM
If it were me, I would request to 'go back' to mediation and would request that child support be addressed at the same time. Obviously this child's mother is not going to cooperate or come to any agreement, or she would have done so. Additionally, from a history of the situation point of view, it could not hurt to have an legal leg to stand on, that being a modified mediation order. Also, if it were me, I'd spend the $50 or so for a consultation with an attorney. The NC Bar Association gives referrals for attorneys who provide an initial consultation at a lower rate when referred through this method; perhaps NY does, too.
Peace and quiet, and peace of mind are always my goals, in my life; so, I try to eliminate areas of confusion and potential manipulation. You and your husband will have to decide which method works for you, whether it is to continue with the same mediation order (you are compelled to adhere to it's instructions), or to seek a modification. An attorney, during initial consultation, should be able to tell you how to initiate returning to mediation (in the absence of the mediation order telling you how to initiate a return).

 

[NYMOM]

Ellencee...She has already agreed to the physical part and has agreed to go to mediation. She just won't budge on the money issues. (It's all about the money for her.) Can mediation help with that part. Can we do what jlc614 suggested and go to the mediation with her agreement as it stands and then after a few months go to court about the money issues? So that way we can show that she doesn't have any problem with the physical part of the agreement.

 

[ellencee]

NYMOM
Is the money issue part of the action that led to mediation, or is it a separate issue, with a separate court order or mediation order?

 

[NYMOM]

We haven't been to mediation the second time yet but the first time the support was listed in the mediation agreement. The tax issue was never addressed. We have laid out the entire joint-physical and the support issues together in what we have written up and spoken about. Through our conversations she has mentioned numerous times that she gets the $100.00 a month and the tax credit. She has no problem with us physical having him but will not budge on the monetary issues. For us it's not really about the money...it is more important to us to have him here where we can help him with his problems and where everyone seems to think he will be better off. However, we don't think it's fair that we have him 90% of the time and still pay support and have her get the tax credit. We don't want any money from her for the time he is with us either.

 

[ellencee]

NYMOM
OK, so you can modify, or seek to modify, all but the tax credit. You could bring this issue up at the next mediation and include it as part of the support order modification.
Check on the IRS site's help questions for information on who gets the tax credit. I believe it is usually presumed to be whoever has custody, but without an order, the parent who pays 51% of the child's support (housing, utilities, transportation, meals, clothes, etc.) can take the tax credit.