Family Law Questions? Ask a Family Lawyer Online.
Is the matter set for a trial?
When you say a motion? Do you a mean a petition to modify the current custody order giving him custody?
not yet. son's father filed a motion to dismiss. 2nd appearance is for november 19th
yes i filed a petition to modify
Oh, ok. I understand.
Do you currently have visitation with the child? And, this is a legal question to you, but do you know if there is a pendente lite (pending the litigation) order in place directing the parents to not badger, harass, or influence the child about their decision?
the visitation order is every other weekend my son is with me and the alternative weekend my daughter is to visit with her brother and father. i have picked up my son religiously the father has never requested time with our daughter even though i am court ordered to provide transportation for her.
there is no pendente lite that i am aware of .
The process to have the custody modified, is exactly what you have done. File a petition to modify, survive his motion to dismiss the petition, which will probably require a hearing, and then get the matter to trial. During your visitation, you will need to sit down with your son and make sure moving back with you is the thing that he wishes to do. While his desire is not dispositive of the case, and the fact that a 12 year old boy wishes to change parents will be a factor in the case, but will not automatically transfer custody to you. The child's wishes are relevant and the older they get the more weight they are given, but the court is of the opinion, that a 12 year old boy does not know what is in their best interest, and will not modify an existing court order just on that statement. In most jurisdictions there is no definitive age in which the childs wishes can modify a custody order.
Therefore, you will need to go to trial, and you will have to put him on the stand to testify that he wishes to come live with you, and the child will have to state why.
Does this answer your question?
i am the only parent that can claim having continously satisfied the "factors" looked at when considering custody. At the last trial it is my understanding that my son said he would remain with his father. And the judge would not allow me to say that my son told me that he has to "take care of his father" as being the reason he said he would stay
I understand. Well if you can get your son's testimony on the record, that will help if you suffer another adverse decision, and will allow you to appeal.
-said it was heresay , even though it was said to me
It is hearsay unless your son gets on the stand and says it himself.
is there any other option besides having my son testify? He has been in the middle long enough.
And havign to choose is tearing him and i both up
his fahter can care less as long as he gets money every month
Unfortunately no. Being that he is the center of the reason for the action, the only way to seek a change is to have his testimony.
I understand, and it happens more than you think.
Its sad really.
if only you knew
I am in the middle of similar situations everyday. It is not a fun experience, and the child is the one that ultimately suffers.
If this answers your question please provide a positive rating so that I may be credited for our time together.
what other issues can i bring up regarding the father?
i see my son every other weekend and i have no way of contacting him inbetween that time
Your main goal is to concentrate on how it is in the best interest of your son to live with you, and how the benefits of him coming to live with you outweigh the disruptive effects of the transition in custody. You can show that the father is unfit to parent your son, and exploit him by gathering information from your son as to why he wishes to live with you.
the father shows no intesrest in our daughter.
Unfortunately there is nothing you can do judicially to force a parent to want to see a child.
Morally, and emotionally, he should want to.
i am okay with the fact that he does not see her. thats his loss. my point is how can he be an "acceptable parent" when he picks and choices who he is involved with
i know the reason being is because he would not receive another check from social security if he was in my daughters life so he does not bother
That is something that he will have to figure out. The only thing the court can do is to reprimand him for the choices he makes and the people he associates with. But, the court can not dictate his behavior or his choices.
what do you mean the people he associates with?
You said who he is involved with. I figured that meant he associated with the wrong people, i guess you meant he should be more involved with his daughter?
The court can not force him to see his daughter, that is what I was stating. The court can only reprimand him for being a "bad dad" or for not seeing her, but can not force him.
Does that answer your questions?
you have answered questions. i unfortunately can not accept how i have consistantly shown inside and outside of court that i am the better parent with ALL of my children , before and after court orders but yet the judge ruled against me only because my son had "been there"
Right, I understand your frustration. The judge is considering the arrangement as it was, and as you see, seeking a change in custody is an uphill battle.
never mind the fact that father admitted to negelecting him. not providing adequate clothing, recreation amongst other offenses
If you receive an adverse decision this time, you should speak to your counsel about seeking an appeal.
heart wont allow an appeal. my son will be a victim of the system. and in a few years instead of family court he will be in a criminal court. but i must wash my hands of this all and walk away
I understand your frustration, I really do! If this has answered your questions please provide a positive rating prior to exiting the chat!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).