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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38359
Experience:  I provide family and divorce law advice to my clients in my firm.
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Can I get full custody?

Customer Question

Can I get full custody? Here are the reasons June 26, 2012 I am concerned for the physical and and emotional well being of my children while in the care of their father (Xxxxxxxx Xxxxxxxx). I am asking for emergency custody because I am scared of his retaliation when he finds out I am asking for this change in custody. I had called CPS last year because of emotional and physical abuse. When he found out he proceeded to come to my home and push me around and when I made it into my house and locked the door, he was banging on the door and ringing the doorbell relentlessly while yelling horrible profanities through the door which my 8 year heard and witnessed and was crying and scared. I filed a police report the next day. He has a history of angry outbursts and police have been called at least 2 times and one time one of our children being hit with something he had thrown. September 12, 2009.... I get a call from Andrew at 6pm. Andrew is crying and saying he wants to come home. I tried to convince him to stay by being positive. He was just too upset. Xxxx got on the phone. I said...”I don’t know what to do” he said “I can drop them off. Andrew is still pretty sick and not feeling well” He said “what about tomorrow” I said “well, you can come and take them for the day” He then proceeded to yell at the top of his lungs that he can’t afford to drive back and forth all the time. Then he continued to tell me that I’m crazy and that I need my head screwed on straight and that it’s all about me. He told me the boys are saying “you don’t care about us” He was yelling at me to the point (in front of the kids) where I had to hang up. I then texted him that I would come pick them up. When I showed up, my goal was to talk to Andrew first and see if I could get him calmed down. Andrew told me “why do you think Daddy’s a bad dad?” I said “I would never say that honey, who said that?” He said “Daddy’s says you say he is a bad dad” I said “No honey, Daddy loves you and wants to spend time with you too” He said “Daddy said I could just stay at your house forever then” He was clearly beyond feeling better or safe...Then Xxxx comes out and continues to yell at me that I need to know exactly what he needs to do tomorrow so that I can’t get mad at him for anything. Yelling again and out of control in front of the boys. CPS has been called twice, one time by Alex’s doctor because he smelled alcohol on his breath during a visit and he wasn’t picking up important asthma medicine that was waiting in the pharmacy for over 1 month. He drove them to the ER because of Alex’s anxiety attack/asthma attack and he was intoxicated to the point of slurring and not able to walk and I took the boys home with me at that point. My oldest had to show Xxxx where he had parked the car. It was at this point he agreed to let me keep them full time until he got it together but then again after a few days started demanding his time. I called CPS last year because the boys didn’t want to go with their Dad and was scared of his house. My 7 year old had massive anxiety attacks over going there. He was pinching them and leaving bruises (I have pictures) He was also so angry that he would scream at me on the phone to the point the boys didn’t want to stay with him and I would go pick them up. He left them with no supervision except for the the 13, 14, and 15 year olds in the neighborhood which would torture them (lock them in rooms and show them questionable videos on the internet) Xxxx would tell them to stay in his room while he left to go somewhere and where I have no idea. He has been so drunk while with him that one night when he gave Alex his albuterol for what we think was an asthma attack, he didn’t even take off the cap and therefore Alex did not get the medicine needed. I say “think” asthma because I am not sure even now if it was asthma or anxiety. One time Andrew was bothering his little brother and just annoying him and being obnoxious and Xxxxdecided to “teach Andrew a lesson” and pinned Andrew to the ground and let Alex walk on his head until Andrew was screaming and crying. Because they did not want to go to their house, I would have Xxxx stay at my house while I stayed at a friends for the night to try and ease my youngest anxiety. That didn’t work and he would call me intoxicated with the kids crying and screaming in the background and I would go be with them and Xxxx would leave. That happened several times over the the 4 years we’ve been separated. He tells our boys that Mommy hates him and we’re not together anymore because I’m crazy and that I steal all his money and I can’t afford to get you etc because Mommy takes all my money. He has been drunk when calling me and ask to drop off the boys and I refuse. My 7 year old heard the conversation and said “Daddy drinks all them time and we drive, what’s the big deal” He lives in an apartment complex where the boys are free to roam around

Submitted: 2 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your question.

I have reviewed the facts posted, and I am truly sorry for all concerned. What specifically is the custodial order currently? When was it put in place? Does the other parent follow the order in terms of timing? Is he behind on support payments?
Customer: replied 2 years ago.

The custody order is Friday @5 to Sunday@5 and Wednesday 5-8. He hasn't seen them on Wednesday since last year and sees them usually only 1 day on weekend which he asked for so he could spend more time with his girlfriend. I didn't have room for the rest of my letter.... Here's the rest

as they like from morning till night while Xxxxand his girlfriend are upstairs in their apartment. He says it fine because they have walkie talkies and I disagree and think they need supervision which he doesn’t offer.

 

Xxxxxx came home from a visit with him with a black eye that took up almost the whole side of his face. When asked what happened Xxxx told me “he wasn’t paying attention and a 60 mph baseball hit his face while playing catch, “he needs to learn” was his response.

 

He had asked to take the boys to Oregon to visit his parents and when I denied that because I was concerned about the boys while with him, he proceeded to tell me that he hates me and will make it his life goal to make my life miserable and will do anything he can to make that happen until he is in the grave.

 

One weekend Xxxxxx didn’t want to go with Xxxx. Xxxx was very angry and told Xxxxxx that he didn’t love him and that he was going to punish him in a way he’s never been punished and will sit and think of ways to punish him if he didn’t go. He then threatened to put him in car by force and that’s when I stepped in and said just leave it alone, he is too old to be forcibly put in the car.

 

I went to pick them up on a Sunday at his apartment and the boys were there alone and Xxxx showed up after we were there and said he went to the laundrymat down the street. His response was that he wasn’t gone that long and it’s not a big deal. There was no land line, he didn’t tell the boys he was leaving nor to not open the doors. My children are a very young 7 and 8 year old that are NOT responsible enough to be left alone. This was the one time I saw it and I have no idea how often he actually does this.

 

He showed up to Xxxxxx’s 8th birthday party 1 hour late and was visible intoxicated and the other guests at the party had mentioned that he seemed either high or drunk.

 

He took them camping when his parents were in town and the boys asked if they could go have an adventure and they were going to the lake he said yes go ahead. At this point neither of the boys could swim nor did they know the area they are in. It was early morning and everyone was still sleeping except Xxxx. Xxxxxx then got stuck in mud and couldn’t get out and was scared, Xxxx on walkie talkie told Xxxx and it took 5 minutes to get to him. Had that been the lake, Xxxxxx would have been gone before he could get to him. Again, his response to this was “They need to learn” He lets them ride their bikes/scooters/skateboards without helmets and even takes them to skate parks and riding in downtown San Jose without helmets.

 

When I bring up my concerns with him, all I get is “You’re crazy, get over it” This is a very frustrating response which leads me to the court.

 

His current live in girlfriend has also expressed her concerns to me over his drinking and anger issues. She said they are getting counseling and the he needs it for his anger problem.

 

My oldest (Xxxxxx) is really being effected by his behavior and will return from his house a different person and he will yell and scream and throw things and yell that he hates himself. A few days later he has calmed down and back to his happy self and it repeats the next week.

 

 

During our marriage I was thrown against a wall and choked on at least 2 occasions. His drinking and verbal/physical/emotional abuse is the main reason for our divorce.

 

From the advice of the CPS worker I have tried to keep them as much as possible by asking him if I could keep them and it has worked very well but now he is asking for them more and I am concerned for them.

 

June 30, 2012

 

Xxxx did not not pick up boys on Friday June 29 and I had not heard from him until 1pm on Saturday. I assumed at this point he wasn’t taking the boys and made plans. Xxxx showed up at 7:30 to pick them up and Xxxxxx did not want to go. Xxxx yelled at him and demanded he give him back the ipod he bought for him for his birthday the week before.Xxxxxx gave it to him. Xxxx wanted to go and got in the car and Xxxx drove by Xxxxxx who was outside with friends and was waving his ipod in his face taunting him that he would never get it back. This broke Xxxxxx’s heart. Not losing the Ipod but the way Xxxx spoke to him.

Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up, Jessica.

Just to be clear, you wish to obtain custody on possible grounds of neglect, domestic violence toward you, alcohol abuse, and his behavior toward the children? By itself, provided everything is formally recorded with the police and other agencies, it is enough to show that the parent may not be 'fit' to care for the children, which is generally what the courts try to look at in terms of deciding custody and what is 'in the best interest' for the children and their development. Having said that, psychological threats and abuse is not enough to claim that the parent is abusive, but physical damage and such manner of threats can be utilized to obtain rights. I cannot tell you if you will be able to prevail since all judges are different and all judges may evaluate the situation in their own subjective manner, but you do stand a very good chance of at least limiting custody and possibly obtaining supervised visitation. I do not think you will get as far as sole custody, but more controlled custody for him is a likely outcome.


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Customer: replied 2 years ago.
what about the alcohol? Can I ask for limited visitation with what I have or do I need more? I don't want to put us through all this because if I don't get it, Matt will be even more combative and I don't want that for me or the kids.
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up, Jessica.

I thought I mentioned alcohol, if I did not then I apologize. Extensive alcohol use is considered to be a factor deeming a parent to be either 'fit' or 'unfit' by the courts, and providing the courts with evidence and proof of his drinking will make it far less likely that his rights will be maintained. But please understand that sole custody is generally granted in fairly extensive conditions--for example if a parent abandoned the children, or he physically (or sexually) assaulted the children, or is very physically dangerous. The rest are factors that can be used to limit rights but for the most part are not enough to completely terminate parental rights to that parent. I do see enough for limited visitation if you properly provide the facts to the judge, but sole custody is likely not possible.

Good luck.
Customer: replied 2 years ago.
Ok, sole custody is out and that is fine and I would be fine with limited visitation but what is limited and I will need what documents for proof for all I've claimed?
Expert:  Dimitry K., Esq. replied 2 years ago.
You would need police reports, physical testimony from witnesses, possibly emails or statements from the ex admitting to behavior, testimony from a child psychologist who is willing to also bring up the past claims of abuse and misconduct.

Good luck.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38359
Experience: I provide family and divorce law advice to my clients in my firm.
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