Evidence for Sole Custody Modification

[LdiJ]

Ok...I have been following your thread, and I am going to ask a question that no one else has asked so far.

Why is your husband going for sole custody? What benefit does he believe that will give him? Sole custody doesn't take away mom's parental rights. Sole custody doesn't take away mom's visitation rights. The only thing that sole custody does is give dad sole decision making rights on major issues such as major medical decisions, educations decisions etc.

Mom is moving overseas. That alone effectively gives him sole custody without it needing to be designated. Mom is NOT going to be present to be involved in decision making, and if someone is serious enough to warrant mom's participating in the decision, she can be contacted by email.

I personally think that you are seriously stressing and planning a major legal campaign that is totally unnecessary...with potential results that would be of little practical value.

However, dad should not keep the grandparents away from the child, but should definitely fight against the grandparents exercising mom's visitation rights. Dad should save his legal bucks for a potential fight with the grandparents over grandparent visitation, and to settle visitation issues with mom.

I should also add that you should have expected mom's reaction to the proposed agreement your husband's attorney put together. Any parent would have reacted the way she did.

 

[proud_parent]

Excellent points, all of them. Thank you for framing the goal so well.

Why is your husband going for sole custody? What benefit does he believe that will give him? Sole custody doesn't take away mom's parental rights. Sole custody doesn't take away mom's visitation rights. The only thing that sole custody does is give dad sole decision making rights on major issues such as major medical decisions, educations decisions etc.

H's decision to amend the application to sole custody has nothing to do with perceived benefit to H, and everything to do with his earnest desire to act in D's best interest. Twelve months ago, he regarded this as another in a string of instances in which he had to prove X's contempt in order to secure his right to maintain a meaningful relationship with D. H has felt since day one that X has failed to appropriately address D's medical and educational needs, but as most of this goes to parenting differences, he's had nothing actionable. He did have in mind that repeated demonstratations of X's contempt (denial of visitation, disappearing with D, ignoring court orders, failure to communicate) eventually might build a case to reverse primary care, even if years from now.

In the past year, however, X's behavior has been in free fall: intense personal relationships alternating between extremes of idealization and devaluation (including physically and emotionally distancing herself from D since taking up with the new "soul mate"), marked mood reactivity, frequent and inappropriate displays of temper, impulsivity, suggestibility (including rejecting the religion of her upbringing to embrace the new husband's "ministry")...the list goes on and on. The worse this has become, the more H has concluded that X is unable to put D's physical and emotional needs before her own. And as neither of them have ever been able to agree on fundamental decisions such as education and medical treatment, seeking sole decision-making authority seems to H the most appropriate course at this time.

Mom is moving overseas. That alone effectively gives him sole custody without it needing to be designated. Mom is NOT going to be present to be involved in decision making, and if someone is serious enough to warrant mom's participating in the decision, she can be contacted by email.

Although X is not physically near, wouldn't H be required under joint custody to be the one to contact her? Whatever is legally required of him, H feels a moral obligation not only to allow but to seek X's participation in decisionmaking, even while she is overseas. Even if he did not, I would feel a moral obligation to urge him to be the bigger person and conscientiously encourage X's involvement in D's life. [I will still feel this way if H receives sole custody, but I suspect that then I will feel less guilty if I am less than zealous. ] Plus, given X's unstable romantic attachments, we both expect that X may one day show up on our doorstep insisting D be returned to her physical care, no harm done [to anyone but D, that is].

I personally think that you are seriously stressing...

Really, does it show?

...and planning a major legal campaign that is totally unnecessary

I do hope you are correct.

...with potential results that would be of little practical value.

I grant that you are most likely right again. But H feels he owes it to D to try with whatever legal means are at his disposal to effect the best outcome for her. I honor him for that and will wholeheartedly support him, as I feel that is what I owe them both. H's attorney thinks the momentum is in H's favor to resolve the question of decisionmaking authority now, and H defers to his professional judgment on this one.

However, dad should not keep the grandparents away from the child, but should definitely fight against the grandparents exercising mom's visitation rights. Dad should save his legal bucks for a potential fight with the grandparents over grandparent visitation, and to settle visitation issues with mom.

This only magnifies my worry. X did not grow up in a vacuum, and there's every indication this fruit did not fall far from the tree, in terms of temperament, parenting choices, and emotional and financial instability. That last may (fingers crossed) work to H's advantage, as grandparents would be on the offensive and perhaps therefore not eligible for legal aid? Still, they could find someone to take their case pro bono -- perhaps X's attorney, who seems to have adopted this case as her own personal crusade, although X is giving her very little help. Consider H duly warned.

I should also add that you should have expected mom's reaction to the proposed agreement your husband's attorney put together. Any parent would have reacted the way she did.

Believe me, none of us expected any less. What shocked the stuffing out of us is when X's attorney proposed a temporary change in primary care in the first place, and X consented; X's staunch position on H having care up to that point was "over my dead body" (I've been sorely tempted over the years to pray for a rogue meteor). I feel comfortable in concluding that H's attorney was resorting to some legal gamesmanship in his draft, attempting to provoke a reaction from X or her attorney and therefore find out what provisions THEY wanted to include in the parenting plan.


If anyone is still paying attention after all this catharsis, I truly appreciate the questions raised and comments given. If nothing else, they've focused my thinking (though clearly not my writing!) and confirmed many of my suspicions. Time well spent, I'd say.

 

[proud_parent]

Update, additional questions

As will surprise no one, X's attorney filed a motion to continue trial. The highlights:
- "Communication with Petitioner [X] has been exceedingly difficult as Petitioner does not have a telephone and has difficulty opening e-mail attachments from the undersigned..."
- "Petitioner will be unable to fly back to the United States for the Trial as scheduled..."
- "Due to the communication difficulties, and an unusually heavy caseload, the undersigned cannot be prepared for trial in this matter on the date currently scheduled."
-"Additional time is necessary for the Petitioner to be able to comply with discovery requests made by Respondent [H]."

In response to H's motion to compel discovery, X's attorney further revealed:
- "Petitioner is unable to pay attorney_s fees for Respondent as Petitioner is not employed and the undersigned counsel is working on a strictly pro bono basis in this matter."

A trial setting conference and hearing on temporary physical care and support are both scheduled for June. Based on present backlog, H's attorney expects modification and contempt won't be heard until October/November.

Meanwhile, H and I continue to search public records for information to support his case for sole custody. In addition to some potentially damaging postings made by X both in internet forums and her personal blog (details of which I prefer not to reveal here), we turned up another indicator of financial irresponsibility: a contract complaint filed in Municipal Court on 5/17 naming X as defendant. Plantiff is seeking ~$1700.00, and the case is scheduled for 6/19.


My questions:
1. What, if any, bearing does X's currently unemployed status have on her responsibility to pay child support?
2. (Pardon me for getting ahead of myself...) Anticipating that X is found responsible to pay support and fails to do so, can anyone recommend resources for international child support enforcement? [H has already checked, and IA does have a reciprocal agreement with X's new country of residence.]
3. Would a judgement against X in the municipal matter strengthen H's case for sole legal custody?
4. Is there a theoretical/practical limit to how many times X's attorney may be granted a continuance in the event that communication with her client continues to be "extremely difficult"?

Finally, on a strictly personal "what would you do" front... if you were in H's position, would you advise the plaintiff in the contract dispute that X has left the country? Would providing such information cross the line between encouraging X's financial accountability and meddling in her personal affairs?

 

[Ohiogal]

My questions:
1. What, if any, bearing does X's currently unemployed status have on her responsibility to pay child support?

Nothing. Parents have a financial duty to support their children.

2. (Pardon me for getting ahead of myself...) Anticipating that X is found responsible to pay support and fails to do so, can anyone recommend resources for international child support enforcement? [H has already checked, and IA does have a reciprocal agreement with X's new country of residence.]

You need to back off at this juncture. You are already anticipating she will not pay. And there is not even an order.

3. Would a judgement against X in the municipal matter strengthen H's case for sole legal custody?

No. Finances have very little if nothing to do with custody provided the parent can put a roof over their child's head, food on the table and provide the necessities.

4. Is there a theoretical/practical limit to how many times X's attorney may be granted a continuance in the event that communication with her client continues to be "extremely difficult"?

That depends on the court.

Finally, on a strictly personal "what would you do" front... if you were in H's position, would you advise the plaintiff in the contract dispute that X has left the country? Would providing such information cross the line between encouraging X's financial accountability and meddling in her personal affairs?

Yes it would be meddling.

 

[GrowUp!]

In response to H's motion to compel discovery, X's attorney further revealed:
- "Petitioner is unable to pay attorney_s fees for Respondent as Petitioner is not employed and the undersigned counsel is working on a strictly pro bono basis in this matter."

And my response (off-the-record) is "so what if she's not working". The x's attorney does not state WHY she is unemployed. That is also something that your hubby's attorney should be grilling as well. Just because one is unemployed does not mean they can not be held accountable for attorney's fees -- especially if state statute requires ("shall") it.

Meanwhile, H and I continue to search public records for information to support his case for sole custody. In addition to some potentially damaging postings made by X both in internet forums and her personal blog (details of which I prefer not to reveal here), we turned up another indicator of financial irresponsibility: a contract complaint filed in Municipal Court on 5/17 naming X as defendant. Plantiff is seeking ~$1700.00, and the case is scheduled for 6/19.

Postings on an internet forum -- unless she's using her real name -- won't get you far. Her own blog is another story. As far as her being sued by someone else, that is irrelevant.

My questions:
1. What, if any, bearing does X's currently unemployed status have on her responsibility to pay child support?

None. It's up to your hubby's attorney to make sure that, IF she has to pay CS, pays what she is capable of -- not minimum wage because she is unemployed.

2. (Pardon me for getting ahead of myself...) Anticipating that X is found responsible to pay support and fails to do so, can anyone recommend resources for international child support enforcement? [H has already checked, and IA does have a reciprocal agreement with X's new country of residence.]

That is something he will worry about when time comes.

3. Would a judgement against X in the municipal matter strengthen H's case for sole legal custody?

Nope. Not relevant.

4. Is there a theoretical/practical limit to how many times X's attorney may be granted a continuance in the event that communication with her client continues to be "extremely difficult"?

No, but it's up to your hubby's attorney to object to the motion for continuance.

Finally, on a strictly personal "what would you do" front... if you were in H's position, would you advise the plaintiff in the contract dispute that X has left the country? Would providing such information cross the line between encouraging X's financial accountability and meddling in her personal affairs?

It's none of your business. You are not privvy to that information.

 

[Zephyr]

He has documentation that he and I have each completed Iowa's transparenting course.

where can I take this course? too many people can see me.....

 

[GrowUp!]

where can I take this course? too many people can see me.....

LMAO. Me too.

(can't believe I missed that)

 

[proud_parent]

where can I take this course? too many people can see me.....

Agreed, a ludicrous title. Not sure who determined that "Transparenting" was the preferred term; when H first completed it in 2001, it was called simply "Children in the Middle".

Aha! That would explain why X never registered for the course despite court order to do so. Her motivations have always been transparent. Besides which, she's effectively demonstrated she knows how to disappear.


Thanks again for the responses, OG and GU.

 

[proud_parent]

None. It's up to your hubby's attorney to make sure that, IF she has to pay CS, pays what she is capable of -- not minimum wage because she is unemployed.

Can you advise how one might determine what support X is capable of, when X has not provided financial documents? As of today, X has filed no worksheet or affidavit with the court; the hearing on temporary custody and support is set for week's end. Furthermore, X has for several years refused to provide H with copies of her W-2s, despite his request. The only indication of income X has given is her statement (to H, off the record) that she didn't earn enough in 2005 or 2006 to file taxes. Based on our best information, X has worked sporadically since the divorce, generally in part-time jobs in a variety of fields, making it difficult to estimate her true earnings.

Will the Court be likely to impute income to X under the circumstances, considering her claim she is currently unemployed? If a judgment for child support is entered, and proof of X's income and expenses is subsequently uncovered that would merit an adjustment, would there be an automatic review? Or must H's attorney seek modification of the support order at trial?

Finally, does H, or his attorney, or other officer of the court have standing to contact X's most recent employer to determine what X was earning before she left that position, or to verify her reported income if X does file a financial worksheet?

 

[LdiJ]

I just thought that I would point out that its possible that X does not have permission to work in the other country...or at least not yet.

I also still think that the sole custody bit is unnecessary. Primary custody would be basically a slam dunk under the circumstances. I still think he is wasting his legal dollars...however of course that's his choice.

 

[proud_parent]

The Latest

I wanted to thank everyone for their past advice and offer an update on my husband's case.

On June 15, the following orders were entered:
- Child support to be paid by X, effective June 1
- Immediate income withholding for the support amount; income was imputed, and employer's name left blank, as X had not (and still has not) provided W2s or tax returns as per discovery request
- CHILD SHALL NOT BE TAKEN OUT OF THE COUNTRY

To date, $0 in support has been paid by X.

X's response to discovery and answers to interrogatories were due July 20 (this was the date established after continuance was granted). On July 23, X's attorney emailed stating she'd been out of the office the previous week and had overlooked sending the information; she indicated answers would be sent that day. After three additional weeks of emails between attorneys with no answers given, H's attorney dictated a pleading asking for sanctions, which he planned to file last Friday. Late last Thursday, X's attorney contacted H's attorney indicating answers were complete but not signed. (Remember, X is living overseas.)

On Friday, H's attorney received email copies of the unsigned responses. There are a number of inconsistencies, factual errors and glaring omissions, which H can prove. Some highlights:
- X answered that she was continually employed from Sep 2004 to Dec 2006 at 30+ hours per week; this contradicts information she provided in 2005 in her request for attorney
- X indicated she left her last job as the assistant manager working 40+ hours per week; this suggests an income several thousands higher than the estimate H provided that was used to set temporary support
- X answered that she has had no income since Jan 1, 2007, but does not indicate that she is unable to work
- X's timeline for the alleged abuse, her report to DCFS, and her authorization of psychological treatment for D flatly contradict the medical record, the psychologist's record, the DCFS report, and X's own emails from that time
- X's account of the psychologist's recommendations is not corroborated by the psychologist's records; furthermore, X has answered that she has not secured any kind of signed, recorded or reported statement from any person in connection with this litigation and has not consulted with anyone she expects to call at trial
- X has objected to all questions regarding her current husband -- including DOB, convictions, former addresses, etc. -- as irrelevant to any matters at issue

H's attorney is still considering filing for sanctions based on the late and insufficient response.


Contempt hearing and trial for custody modification are now just three months away.

 

[proud_parent]

Application for Sanctions Filed

My husband's attorney filed the following application last week. We're questioning the appropriateness of the sanctions he's seeking. It seems to me that there is a strong argument in favor of a default judgment of contempt, but the rest seems to be overreaching a lot.


COMES NOW Respondent [H], by his attorney ...and makes application to the Court to impose sanctions against [X], Petitioner, and in support thereof, states:
1. On May 11, 2007, Respondent files a Motion to Compel Discovery with this Court requesting that the Petitioner provide the following discovery:
A. Request for Production of Documents served December 27, 2006.
B. First Interrogatories to Petitioner served December 27, 2006.
C. Second Interrogatories to Petitioner served March 30, 2007.
2. On May 25, the Judge of the Court entered an Order sustaining the Motion to Compel filed May 11, 2007. The Order further stated, "Petitioner shall provide the requested discovery on or before July 20, 2007."
3. , attorney for Petitioner, sent a letter dated July 23, 2007, a copy of which is attached... Her letter indicates that she has infomation from [X] and overlooked sending it by the July 20, 2007, deadline.
4. On August 17, 2007, Petitioner's counsel e-mailed the undersigned five documents which represented to be Petitioner's response to the Order for production after orally stating that she would send the documents to her client for signature. [documents list]
5. Regarding the Request for Production of Documents:
A. No documents have been provided to the Respondent as of the date of this Application.
B. Petitioner has totally failed to respond in any way to Requests for Production 1, 3, 4 and 5.
C. It is essential that Petitioner's past earnings from employment be disclosed so that an appropriate level of child support can be established for her.
6. Interrogatory 2F states, "Indicate the days which you have worked between September 1, 2006, and December 8, 2006." Petitioner answers, "Petitioner worked approximately 80 days." This answer is evasive and incomplete in that it states the number of days not the days on the calendar which Petitioner worked. This information is important to Respondent as he has evidence which indicates that [X] lied to him about her employment and the reasons for failing to provide visitation.
7. Answers to Interrogatory 3 are incomplete in that the dates and nature of each treatment is not provided.
8. Petitioner objects to Interrogatories 13B-H and 19A-F but the objection was never served on Respondent's attorney within thirty (30) days after the interrogatories were served as required by Iowa Rule of Civil Procedure 1.509(1) and therefore the objections are not valid and Petitioner must answer. Interrogatories 13 and 19 request information about Petitioner's current husband, [M]. Information about [M] is certainly relevant if Petitioner expects to exercise any visitation with the parties' daughter in the presence of [M]. Respondent has been kept in the dark about [M] however he has learned through his daughter, [D], that [M] is a proponent of a fringe religious cult.
9. Petitioner [X] has previously wrongfully withheld visitation and has admitted that she was in contempt of Court for her actions on October 23-24, 2004.
10. Third Application for Rule to Show Cause now pending before the Court alleges that Petitioner wrongfully withheld visitation from the Respondent from August 28, 2006, through the date of the Application.
11. Petitioner [X] surrendered primary care of the parties' seven year old daughter in early January 2007 and since she left the country...has had only minimal contact with the parties' child and has paid no support for the parties' child.
12. Appropriate sanctions should be imposed against Petitioner [X] for failure to provide discovery as ordered as authorized by Iowa Rules of Civil Procedure 1.517(2)(b).
13. Petitioner's Answer to Interrogatory 2 indicates that she worked at [XXX] starting September of 2004 and left in January 2006. [X] states, "I worked roughly 30 hours a week with varying days off. Those hours increased from Mid October till end of December." Petitioner's Financial Affidavit/Application for Appointment of Counsel/Order filed October 17, 2005, a copy of which is attached ... indicates that Petitioner [X] signed the application October 13, 2005, stating that she was employed part-time for 10 hours a week... It appears that Petitioner either mislead the Court on the October 17, 2005, Affidavit or is now providing inaccurate information in her Answers to Interrogatories.
14. Judgment by default is an appropriate sanction and should be entered against [X] and she should be found in contempt for wrongfully denying the Repondent visitation with their minor child on September 9-10 and 23-24, October 7-8 and 21-22, Novermber 4-5 and 18-19 and 23, all in 2006.
15. The Court should also enter default against [X] on Respondent's Amended Petition for Modification of Child Custody and Visitation as a part of this action and default should now be entered against [X] as follows:
A. Sole custody of [D] should be awarded to [H] with Petitioner [X] being granted reasonable, supervised visitation.
B. Child support should be ordered against [X] in the amount of [$$$] per month as she has failed to provide any financial information.
C. Court costs and Respondent's attorney fees should be taxed against Petitioner [X].


Am I wrong in thinking that a default judgment for sole custody would be out of the question in a case like this? I'm worried that requesting too much in the way of sanctions could result in a denial without remedy; how strong is the likelihood that this would happen?

A hearing on sanctions is set for later this month. My husband would like to be prepared to suggest lesser sanctions in court, in case the judge finds the requested remedy inappropriate. Can anyone offer advice as to what sanctions would be appropriate here?

 

[LdiJ]

Honestly, I think that the whole thing is over the top and is a huge waste of money.

Mom is overseas, your husband has physical custody and defacto sole custody since mom won't be around to help with decision making and can't have visitation overseas.

Its highly unlikely that any of the financial sanctions (or even the child support order itself) can be enforced overseas without spending some significant bucks...

Therefore again, I think he is spinning his wheels. By all means ask the court to impute an income to mom and have a child support order on the record...and so that arrearages are building up.....but otherwise let it go...you are simply wasting legal bucks.

 

[proud_parent]

The Judgment

I reopened this thread to offer an update on the outcome of my husband's custody case.

X and her husband returned to the US on Nov. 14 and are now staying with X's cousin in Pennsylvania. We found out after the fact, when X told D over the phone that they had moved. [D reported, "Mom says there are too many rules over in England, so they decided to move back here."] This appears to be a permanent relocation, but as usual, X is less than forthcoming with information.

On Nov. 16, X was sanctioned for failing to provide financial discovery and for giving incomplete and evasive answers to interrogatories (she refused to answer questions about her husband, despite the court having compelled her to answer). X's attorney further stated that her client does not intend to seek employment. At the hearing, the judge ordered that H shall have sole physical custody, so the only matters pending for trial on Nov. 28 were legal custody, visitation, child support, and H's motion to find X in contempt.

X did not appear for trial. At that time her attorney stated that her client was willing to admit to contempt and to stipulate that my husband have sole custody. Following an in camera hearing with both attorneys, the judge entered the following judgement:

- H awarded sole legal custody.
- X found in contempt for failing to provide visitation; no sanctions imposed at H's request.
- X to pay child support .
- Until the end of September 2008, X may only exercise visitation, both weekend and holiday visitation, at the home of X's parents in Illinois area.
- [After September 2008] X shall have up to two (2) weeks visitation each summer and up to seven (7) days visitation each winter break.
- If X is current on her child support payments on the date of the air travel for visitation, H shall pay X one-half (1/2) of the actual cost of the airplane ticket. If X is not current on her child support obligation, X shall be solely responsible for paying for the ticket.

My husband is thrilled to be granted sole custody. Frankly, we are astonished that the judge restricted visitation to such a degree. Sadly, though, we aren't surprised that X is already taking advantage of the verdict as an excuse for further distancing herself from their daughter.

First, D told her mother on the phone today that she will be staying with her grandparents for a couple of days before Christmas, and asked if she'd get to see her then. I was in the next room when I heard D blurt out, "Dad never said anything about that. That's not fair!" After D said goodbye to her mom, she put H on the phone, and he asked what had prompted that outburst. X said she'd told D she can't see her because D isn't allowed around her step-father. (Although the step-father's background is much of the reason for restricted visits, the judge never ordered that he could not be present.) H objected to X discussing the details of the order with D (who just turned 8) and misrepresenting the order besides. He then asked X when she does plan to visit. X replied that her husband is busy starting up a new business and that between helping him and settling in from the move, "We might not have time for visits until next September."

Second, prior to the judgment being read into the record, X's attorney telephoned X. She placed the call on a cell phone from the waiting area outside the courtroom; I was seated only a few yards away and could clearly hear her part of the exchange. (The attorney either did not recognize me, or was not at all concerned about privacy.) First, she described the visitation restrictions the judge had imposed. She paused to listen a moment, and then said, "Yes, support will be based on the wage they think you were earning." Pause. "No, since you aren't working now, it will be tough to enforce." Pause. "Yeah, say that you stay in Pennsylvania and some day get a job...they could track you down and have your wages garnished. But it will be next to impossible for them to enforce if you don't have a job. Especially since you're in another state."

H has not and does not intend to share the details of the judgment with D; she knows that there was a trial and that her mother agreed that she should continue to live with her father. H has already contacted D's therapist to help us deal with the emotional fallout of D's mother choosing not to visit her.

 

[Silverplum]

Wow, congratulations to your H! And good luck to all of you.

And thanks VERY MUCH for coming back to update with the conclusion.