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P. Simmons
P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 34256
Experience:  16 yrs. of experience including family law.
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Hi - My sister is in the midst of a divorce (document signed,

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Hi - My sister is in the midst of a divorce (document signed, court date April 4). She is the Primary provider and will pay her husband Support for 4 years. In NY he pays child support of $50/month (he makes very little money - 2 kids, 11 and 7). The custody agreement in the divorce was she is the Decision maker and he has visitation. (I think that is sole custody.) My question is this: He has decided to make her life awful. He doesn't stick to the agreement. He smoke marijuana in front of the children regularly. He can't hold down a job. CPS report was filed on him by the school due to the negative impact he is having on the children. Generally he is a dead beat. My sister went to a custody lawyer today to discuss options because he is essentially unfit and he is a bad influence on the children AND due to his current rights she cannot move on with her life. (ie if she stays in Rochester NY, he will never leave her alone - we have police reports to prove he is volatile). The custody lawyer she went to said, and I quote: " Why did you marry him in the first place? You are stuck with it until they are 18. There is nothing you can do."
Given that the safety of the children is at risk, I find that hard to believe. She is at her wits end and doesn't know what to do. The kids really are spiraling, he is abusive (verbally) to her and the kids. Can I get some insight on her options? At this point, whatever she can do to get away from him is necessary. She is open to allowing him access to the kids on a more limited basis (ie school breaks and summer) so that they can get a schedule that will enable them to succeed and enable her to move away and get on with her life away from his abuse.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Part of this depends on the nature of the divorce...there are two ways to obtain a divorce (which includes the custody/support of the kids from the marriage).

You mention she is in the "midst of a divorce"...that does that mean? Is this a contested divorce? Where the judge is taking evidence to decide the case? Or a non contested divorce, where the parties agree?

Customer: replied 6 years ago.
It is not contested (any more). Took them a year to get to a signed agreement, which is in the process of being "approved" by the court. My understanding is that it is non contested since they reached an agreement. The advice she was given by her divorce lawyer was to get the divorce agreed upon and then deal with the custody arrangement after because putting it in the hands of a judge is always risky.
Yes, the fact that they have reached an agreement means its "not contested"

Most divorces go this route at some point...some sooner than others.

Its a cost costs a LOT of time (money) to contest a most folks, at some point, agree to agree.

But understand that agreement is, by its nature, compromise.

If sister is not in not willing to compromise, she should NOT be settling...she should be fighting.

You can not have it both ways.

So, in her case, if she is not happy with the agreement, she has 2 choices

1. She can wait...she can wait until the divorce is over then, IF, and this may be the big IF, if she can show that dad is not abiding by the court order and/or dad is a danger to the kids, she can ask the court to modify the order.

She runs a risk here...since the court will be reluctant to change an order right after its issued, unless there is good evidence that one parent is a danger to the kids.

But this is an option she has...what you describe, dad using illegal drugs in front of the kids, and otherwise not acting in the best interests of the kids...that is something the court can ask to fix.

2. She can stop the "non contested" divorce and go back to the fight...and then present the evidence you describe. What you describe is not in the best interest of the kids...but to get the court to act on this, she will need to present the evidence to the court and ask the court to rule in her favor. It will cost time/effort (money)...but if that is what she wants, its certainly possible.

And if her lawyer is not helping her? Time to get a new one.

Let me know if you have more questions
P. Simmons and other Family Law Specialists are ready to help you
Customer: replied 6 years ago.
One more. If she proves that he is unfit (ie evidence of police reports, drug testing, and cps), then what typcially happens with the "move" restrictions? ie if she gets sole custody, do courts ever let the primary parent move away as long as some visitation is arranged? Again, from her sanity...she must get away from him.
Depends...the reason is key

The court will decide custody based on one thing only. "What is best for the child". NOT what is best for mom, or dad, or really anyone/thing else. The court is concerned about the child.

Now, in most cases, the court will find its best if BOTH parents are in the child fact the court presume this. But the court will listen to evidence to determine how to divvy up custody. SO if there is evidence that the child is better off with one parent or another, they will consider this.

So, if the court finds dad a danger, then they can limit his time and require supervision...but its not likely the court would take away all rights...not right up front.

As for moving? That depends on the reason. Mom has to move to find a job? That would be more likely for the court to approve than mom wants to move to keep kids away from dad.

So the reason for the move will be a key fact the court will want to hear evidence on.


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