Trying to Get Joint Custody

[1day@atime]

I know I have messed up in the past but I'm going to be honest because I need honest answers.

Right now my son's mom has physical custody of our son (who is 2 years old). During the day while she works Grandma watches our son 3 days and he goes to daycare 2 days a week. I have proposed to mom that I can watch our son while I work instead of Grandma or I can change my hours to work 3 days off 4 days working. Because we live an hour apart I want our son to stay the night on the days I watch him and I still want to have him every other weekend.

My son's mother's arguement is I can't watch our son and work at the same time. She feels that our son will be deprived of attention, but I believe I can manage. Of course I won't be able to do all the things Grandma does like go to the zoo, park & library because I will be working from home but at least he will be with me.

My son's mom also says that because I travel alot that that will interfere with me watching our son and he won't have a consistent caretaker. I disagree. I can find daycare for him or my wife can watch him when I travel.

Now here is the part that is painful but I'm being honest. I've forgotten to show up for a some visitations, have not paid the court ordered child support (I'm $6500 in arrears), claimed our son on my taxes when I shouldn't have, haven't reimbursed her for medical expenses and haven't done midweek visits( midweek visits are not court ordered but the ex seems to feel that since I haven't made an effort I don't care). Also this year I have the 4th of July as my holiday. I will not be able to exercise that time because I have a 10 day vacation scheduled to the Bahamas. I am not taking my son because I only get two weeks of nonconseutive vacation time and I would have to cut my vacation short, which would not be fair to my wife.

I think the judge will forgive me and understand that I now want to spend time with my son. My ex says I'm trying to get joint custody to lower child support. What can I do to convince the judge that I want to spend more time with my son even though I haven't done all I should have in the past?

I've already filed the petition for modification of custody, child support and visitation. Do I stand a chance at getting joint custody?

[aaron]

Custody laws vary by state, and you did not indicate where this is occurring.

If I were advising a client in Michigan, who gave me the facts you describe, it would be my preliminary assessment that the judge wouldn't even entertain a petition to modify custody as there appear to be no changed circumstances from the time the last custody order was entered, and secondarily that the facts described would not be sufficient to prevail in a custody action. (But the laws, threshold issues, and burden of proof vary by state.)

I believe that any non-custodial parent who is interested in getting more parenting time to satisfy all support arrearages, and to the maximum extent possible to exercise all of the parenting time opportunities he or she already enjoys.

[1day@atime]

I'm in Arizona. And the change in circumstance is my work hours. I can change my work hours to work 4 days on 3 days off. The 3 days I'm off I can watch my son. Is that enough of a change? Do you think a judge would think I'm going for joint custody to lower support?

And are you saying that because I'm in arrears that a judge will not even listen to what I want as a parent or what I perceive to be in the best interest of my son to spend more time with his father?

Do judges hold it against the NCP if support is not paid? I thought support and visitation were kept separate? Can you give me a little more detail.

thanks

[aaron]

You aren't asking for enforcement of parenting time. You're asking for a change of custody. If you don't bother to live up to your duties under an order of the court, why wouldn't you expect the judge to question your sincerity, or to think that your purpose in seeking a modification is primarily to reduce your support obligation?

In Arizona, modification of custody is governed by the following statute:

A. A person shall not make a motion to modify a custody decree earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health. At any time after a joint custody order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence pursuant to section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint custody order. Six months after a joint custody order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. A motion or petition to modify a custody order shall meet the requirements of this section. Except as otherwise provided in subsection B of this section, if a custodial parent is a member of the United States armed forces, the court shall consider the terms of that parent's military family care plan to determine what is in the child's best interest during the custodial parent's military deployment.

B. For the purposes of a motion to modify a custody decree, the military deployment of a custodial parent who is a member of the United States armed forces is not a change in circumstances that materially affects the welfare of the child if the custodial parent has filed a military family care plan with the court at a previous custody proceeding and if the military deployment is less than six months.

C. The court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health.

D. If after a custody or parenting time order is in effect one of the parents is charged with a dangerous crime against children as defined in section 13-604.01, child molestation as defined in section 13-1410 or an act of domestic violence as defined in section 13-3601 in which the victim is a minor, the other parent may petition the court for an expedited hearing. Pending the expedited hearing, the court may suspend parenting time or change custody ex parte.

E. To modify any type of custody order a person shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice, together with a copy of the affidavit or verified petition, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.

F. The court shall assess attorney fees and costs against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

G. Subsection E of this section does not apply if the requested relief is for the modification or clarification of visitation and not for a change of joint custody, joint legal custody, joint physical custody or sole custody.