Does she have enough to change custody?

[dadinMS]

What is the name of your state (only U.S. law)? MS

I've never posted on a forum before but I've lurked here a lot so I'll try to follow all the rules.

Here are the facts:

My exwife and I divorced in 2004. We have one son who is currently 11 years old and in fifth grade. At the time of our divorce we agreed to joint custody both legal and physical. That worked until 2006. In 2006 she decided to move to TX about 8 hours away and agreed to give me physical custody. We kept it joint legal and had a new order done. That's what we've been going by since 2006.

Every few years she asks me if he can go live with her and I tell her I won't agree to it. Now she is getting a lawyer to take me to court to change custody. This came about because I emailed her to update her on his school progress. He is doing poorly in English and Reading. Also of note, he did fail 1st grade a number of years ago.

The only things I could see her bringing up in court is the education thing. Would the fact that he failed 5 years ago matter now? If she had an issue with it shouldn't she have filed then?

As far as his current problems, I can prove that I am doing everything within my power to help him. I have hired him a private tutor who he sees 2-3 times per week. I can prove that I've had weekly contact with his teachers via phone, email, and conferences since his grades started slipping. Also to note, when I talked to him about his grades when they first starting dropping and I asked him what was going on, he told me he was trying to fail on purpose because "mom told him that if he fails she can get custody of him and he can go live with her and he wants to see what it's like to live in TX." His words, not mine.

When the ex first emailed me wanting him to go live with her, I asked her her reasons, mainly out of curiousity, and her reply was: "I want to spend time with him and he wants to spend time with me. You know that I'm not having any more kids. You have had him for all this time and at this point he is at the edge where he still wants to spend time with his parents. I want to take him to school and make his lunch. The schools in texas might be a little tougher but I think that's a plus for him. I want to get him involved in some activities, music lessons, and teach him how to cook. He may not be interested in those things when he gets older and starts wanting girlfriends. I want to get to know him a little better/ more than just phone calls and holidays. You have had that time with him. I want to spend time with him."

At that point I emailed her back and told her that I understand her feeling that way but not to forget that she made the decision 8 years ago to move away and not be involved in his day to day life. I proposed that maybe we could come up with a plan for him to spend more time with her during the summer and on school breaks. Her answer was that I won't agree for him to go live with her then we just have to go to court and let the judge decide.

So that's where we are now. When she files, what is my best defense to her trying to change custody?

Thank you for your time.

 

[RRevak]

First off, this is MOM we're talking about and not Joe Schmoe off the street. Unless she's the anti-christ, there is no reason she shouldn't petition for more time with her son if she feels she isn't getting enough. You holding an 8yr old grudge is nonsense. So, what BETTER and CURRENT reasons do you have to fight her request for change?

 

[dadinMS]

She's not filing for more time she's filing to change custody and move him 8 hours away. It's not a grudge. I don't want him to move 8 hours away. He's lived with me for 8 years.

I'm not opposed to more time with her....that was my idea for her to get him for more of the summer and more school breaks. She doesn't want that. She wants to change custody and move him.

 

[TinkerBelleLuvr]

This is mom wanting to change CUSTODY and not just spend a little more time.

If she files, I would have an attorney look at it.

 

[dadinMS]

I don't think I'll be able to afford an attorney so I'll have to represent myself. Looking for any advice I can find.

And rrevack as far as her not getting enough time....she's getting exactly what she asked for when she moved. 6 weeks in the summer, every other christmas, every other thanksgiving, every other spring break. And on the rare occasions she's in town she gets him. I'm willing to give up some of my summer and school break time so she can have more time with him. I'm NOT willing to agree to let him move 8 hours away.

 

[RRevak]

This is mom wanting to change CUSTODY and not just spend a little more time.

If she files, I would have an attorney look at it.

Right. But while I get that part, what i'm also seeing is that dad is not ok with it simply on the grounds of an 8yr old grudge. Per his own reasoning..

she made the decision 8 years ago to move away and not be involved in his day to day life.

That sounds more like a grudge no rather than a "I have a legitimate reason for not allowing the move" sort of no which is selfish on his part. Esp if she's been asking and he's continually said no. Like somehow kiddo is a toy dad doesn't want to let mom borrow.

 

[dadinMS]

I never said that was my reason. That was in response to mom's reasons for wanting to change custody. She made the decision to move and not be a constant in his life. That's just a fact. Now because she wants to be a mom I should say ok? And let him move? No. He's established here. Been in the same school since kindergarten. Was born here. Has extended family here including mine and his mom's extended family. He knows 2 people in tx. Mom and her boyfriend.

 

[dadinMS]

And to be honest I really dont appreciate your characterization of me based on one post. My son is not a toy but that's how mom acts. When she couldn't be bothered to raise him she was more than happy to leave him with me. Now that she's settled down she wants to change everything up....He's not a pet that you take to the pound when you don't have time and then try to get back when it's more convenient for you. And that's what she's trying to do.

And yes I am willing to "share." Did you not see where I offered to give up some of my time so she could have more?!?! Not that it would matter. She doesnt even use all of her court ordered time now.

 

[Ladyback1]

Right. But while I get that part, what i'm also seeing is that dad is not ok with it simply on the grounds of an 8yr old grudge. Per his own reasoning..



That sounds more like a grudge no rather than a "I have a legitimate reason for not allowing the move" sort of no which is selfish on his part. Esp if she's been asking and he's continually said no. Like somehow kiddo is a toy dad doesn't want to let mom borrow.

I think you are reading a lot into his post that frankly, just isn't there.

Mom has made no effort to gain custody in 8 years (some really formative years from 3 y/o to 11 y/o). *SHE* now seems to want to "play" parent, and if what Dad says is true re: what the child said, then Mom is being manipulative and conniving. Mom CHOSE to abdicate her day-to-day role in parenting when she CHOSE to move 8 hrs. away, and "gave" custody to Dad.

From my perspective, I do not believe Mom has enough of a change of circumstance to warrant a change in custody. I could be wrong on that, and if I am...I am sure some senior member will tell me so!

 

[dadinMS]

And let me be clear on my reasons for opposing the change in custody and move.

First and foremost I love my son.

Second I dont think it's in his best interest to be uprooted from the only place he's ever lived and moved 500 miles away. All of his family except his mom lives here. Me. My parents. His mom's parents. His mom's 4 siblings who he's very close to and spends alot of time with. His 2 half sisters. His stepsister who hhe's been raised with since he was 2. And my wife is currently pregnant with what will be his baby brother in August.

So again any advice is.welcome.

 

[dadinMS]

Thank you ladyback. You spoke the words I was thinking.

What about the fact that he failed first grade 5 years ago? Can she bring that up now? What about the fact that he's not doing well now?

 

[Proserpina]

In all honesty I don't think she has a snowball's chance in hell.

Failing 1st grade = not an issue
Wanting to give son the option to decide = huge mistake

I'm also just not seeing anything close to the required CoC.

Rrevak - How does "best interest" not come into play here? Since when has it been the CPs burden of proof?

CP is not moving.

Mom wants the child there.

Explain to me why Mom's reasons are better than Dad's reasons.

 

[Ladyback1]

Thank you ladyback. You spoke the words I was thinking.

What about the fact that he failed first grade 5 years ago? Can she bring that up now? What about the fact that he's not doing well now?

You seem to be doing all that you can to make sure he has the opportunity to excel.
Have you had him tested for a learning disorder or psychiatric disorder that would inhibit his ability to learn?

(failing kindergarten/first grade should be a non-starter. Some kids at that age --especially if his birthday puts him as one of the youngest in the class--just are not ready for school)

 

[dadinMS]

His teachers don't see any signs of learning disabilities or other disorders so he's not been tested for anything at this point. However his tutor is a retired sped teacher with 25 years experience working with special needs and regular kids. She's not licensed to actually evaluate him but we've discussed things and she's going to work with him and if she feels he exhibits signs of anything like that she's going to let me know so I can get him the appropriate testing.

He was the youngest in his class. Since he repeated 1st grade he's right in the middle age wise as far as his classmates ages are concerned.

Other than the education issues I cant think of any other "change of circumstances" she would have.

 

[single317dad]

As far as his current problems, I can prove that I am doing everything within my power to help him. I have hired him a private tutor who he sees 2-3 times per week. I can prove that I've had weekly contact with his teachers via phone, email, and conferences since his grades started slipping.

You're doing exactly what you should be doing. Carry on.

Other than the education issues I cant think of any other "change of circumstances" she would have.

Those, if any, should be enumerated in the initial complaint when it's filed.

RRevak: I think you're being entirely unreasonable. The burden is not on the CP here.

The law in Mississippi on custody modification is well settled. In order to modify a child-custody order, the party seeking the change in custody bears the initial burden of proving that there has been a material change in circumstances. Anderson v. Anderson, 961 So. 2d 55, 58 (¶6) (Miss. Ct. App. 2007). In determining whether a material change in circumstances has occurred, the chancellor must examine the totality of the circumstances. Id. If the chancellor finds that a material change has occurred, the chancellor must then make a separate assessment to determine if the change is “adverse to the child's welfare.” Id. (citing Thompson v. Thompson, 799 So. 2d 919, 922 (¶8) (Miss. Ct. App. 2001)). In the event of an adverse material change in circumstances,“the chancellor may determine whether the best interest of the child requires a change in custody.” Id. When analyzing the best interest of the child for the purposes of custody modification, the chancellor must make “on-the-record findings for each of the Albright factors.” Anderson, 961 So. 2d at 58 (¶6) (citing Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶21) (Miss. Ct. App. 2001)).

Even if Mom could prove adverse material change, I think your assessment is off the mark. It seems Mom is the one treating Jr as a "toy to borrow", not the other way around.