As stated before the child has been with my wife for the last 5 years and she has primary residential custody with no specified visitation schedule. The child didn't have a very good relationship with his father and didn't really even want to go over to his house for weekends. His father has a history of being mean and verbally abusive. When we were married 9 months ago, her ex-husband wanted their son to come live with him. He turned on the charm and started being the dad, he never was before. The son is convinced his dad has changed. However, no one else is convinced. My wife would not agree to a change of custody, but they ended up agreeing to let there son spend the first half of the school year with him, and the second with her. After that, they would evaluate how things went, and go from there. He ended up spending the majority of the summer with his father, and the first half of the school year with his father, as agreed. He is now supposed to be back with his mother, but the father is now backing out of his side of the deal. The last couple of months they have been trying to come to an agreement. All communication has been done “unofficially" and without getting an attorney involved.
In addition, They set up an bank account together for the child support deducted from his paycheck. During this temporary agreement he would get his child support back. Once the money was deposited, he would withdraw it electronically and deposit it into his own account.
Yesterday she received a motion to recognize de facto custody based on the fact that the child has been with him since the summer. The only reason he has been with the father is because they had an agreement for equal time and he took his half first. He then refused to uphold his end of the agreement.
First, it seems silly to start a custody battle with a 17 year old minor. If he was 4 years old, our decision to pursue this would be a lot different. So we are trying to figure out if it is worth putting up a fight.
Nevertheless, Can he get custody without the court hearing her side of the story?
What should be done before the motion is heard a couple of weeks from now?
What should we expect to happen the day the motion is heard?