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Michael J, Esq.
Michael J, Esq., Lawyer
Category: Family Law
Satisfied Customers: 3461
Experience:  Licensed Attorney - represented hundreds of clients in criminal cases, family law disputes, traffic issues, and general legal issues. Youth Court Prosecutor.
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My brother is in a horrible situation with s ex wife and my

Customer Question

My brother is in a horrible situation with his ex wife and my niece is stuck in the middle. He's already knee deep in lawyer fees from the first attempt at fighting her. He is a loving father so desperately wanting to be a part of his 7 year old daughter's life. His ex is now remarried and is making things extremely difficult. My brother only gets his daughter every other weekend during the school year and every other week during the summers. This was the unfortunate unfair result of a court trial giving custody to the mother so she wouldn't have to bounce around during the school year. In the off weeks he has tried arranging phone calls only to receive an occasional answer, but mostly no call back and being neglected to talk with his daughter. Lately his exs new husband has demanded that my brother call his number to talk with her, all calls are to go through him. But still rarely gets to talk with his daughter. They say she doesn't feel like talking even though they should be encouraging her to have this relationship and putting her on the phone. The latest is my brother went to his daughters school to have lunch with her. He got a call from his ex's new husband stating they should be notified next time he has lunch with Kyleah so they do not waste a lunchable. The mother has no relationship with her own mother, her own father or her own sister. The only way they get to see Kyleah is on my brother's time. He shared one day out of his 4 days around Christmas so Kyleah could do christmas gifts with her maternal grandmother. It's sickening how all of these people especially my brother are being alienated rather that having these important relationships fostered and encouraged. It is heartbreaking to see my niece on a Sunday when it's time to return her to her mother. The tears that happen are heartbreaking as she does not want to go back. She is confused and trying to please both parents while she is with them. I worry for her. My brother was the dad who was up feeding her in the middle of the night as a baby, chamging her diapers, taking her to the bathroom at a restaurant, down on the floor playing with her, and wants so badly to be a bigger part of her life but is not being allowed. What can he do? He cannot afford another lawyer. He's still paying on the last one. He needs a pro bono or something. Someone willing to fight for his right to be a father, someone willing to fight for his daughter and her future. Please any advice you have...is this a strong case for parental alienation? What potential is there that custody could ever be evened back out or flipped? I know it's nearly impossible to pull a child away from her mother. Surely it doesn't have to be this way forever...
Submitted: 1 year ago.
Category: Family Law
Expert:  Michael J, Esq. replied 1 year ago.

Hello and thank you for contacting Justanswer. My name is Michael; I look forward to assisting you today.

I'm sorry to hear about your brother's situation. Just a couple suggestions with the limited info I have:

  1. As an attorney, I usually put in clauses that basically force the custodial parent to foster the relationship between the child and the non-custodial parent. I'm not sure if he has language like that, but he may want to check. If so, he can read through it and see if anything is being ignored and can possibly file a contempt action to try and force the custodial parents to do a better job at fostering the relationship.
  2. To modify an order, there usually needs to be a "material change in circumstances" and the change must be in the "best interests of the child". The new husband making things difficult could be the "material change" that is needed to have the court look at it again. Also, I'm not sure why your brother didn't get joint custody, but if there was a reason, it would be good to be able to show the court that those reasons are no longer valid (example: he used drugs but now he's clean).

In the end, he will have to have an attorney to do either, unfortunately. Attorneys rarely take pro bono custody cases, but there may be a legal aid near him that could take a look.

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DISCLAIMER: This is not legal advice and I am not your lawyer. My questions are based on my knowledge of the jurisdiction where I am admitted to practice, my experience on this site over several years, and research on the relevant laws and statutes for your jurisdiction, if any. My information is not advice and you should always speak to local counsel before you act.

Customer: replied 1 year ago.
I am not sure why he did not get joint custody either. They started out with 50/50 from age 3 until 5. Once she started kindergarten her mom tried to verbally change the agreement to having her full-time except every other weekend due to school starting up and she did not want her to go back and forth between mom & dad's house (even though they only lived 15 miles apart). It was no trouble for my brother to get her to and from school on his weeks. He disagreed with her verbal proposal and they ended up back in court. Somehow she won this arrangement despite my brother's good parenting history. He has never done drugs, etc, no criminal record, always pays child support. He has be unfairly stripped of his role and unfairly only sees his daughter 2 weekends per month. I wanna fight for him, I wanna help him, but I just do not even know where to start or where to send him for support. His ex and her new husband are running this show and I don't know how they are getting away with it. The new husband does the handoff of child. Mom doesn't even get out of the car. Any calls have to go through the new husband. Now she is refusing to converse via email too. Basically she is saying any communication should be done through the court. One other thing they recently did was put the kiddo on the new husbands insurance without telling my brother. My brother absolutely has not dropped her from his, but feels like that was a major medical decision not discussed with him first. They also changed her pediatrician without consulting him awhile back.
Expert:  Michael J, Esq. replied 1 year ago.

I'm sorry to hear. As mentioned, he'll need to move to modify the order based on a "material change in circumstances". That's the remedy for getting the case back in front of the Judge in order for the Judge to change it. He should start by consulting a local family law attorney about that modification.

Let me know if I can help further.

Michael