Best Interest of the Child
My question involves a child custody case from the State of: FL
Please advise if this belongs in the Child Support forum.
My husband is the NCP and he never married his 8 year old son’s mother. There are only two court files on record, 1) a 2004 Final Judgment acknowledging my husband as a “legal and natural parent” with setup of CS payment with arrears and 2) Modification of CS Obligation in 2008 (increase in payment).
My husband has been doing his best to pay his support as ordered. He is in the construction industry and there are good times and bad. Right now, he’s been out of work for a couple of months, filed unemployment, and now he’s not even filing for unemployment because he is out of weeks. The job market for him has been so bad that he’s now relying on me to make some form of payment. My husband says he cannot file a modification because it is too early to file, once every 3 years? I cannot find any documentation stating such. Also, within that 3 year period he worked overseas and earned a good income. Since he came back to the states, his income has not been the same and it has been very hard for him to maintain any income. As stated, he is currently out of work. If he were to go back overseas, he would not be able to spend time with his son. I have a full time job and can manage to support both of us on my single income. It’s not the greatest, but we can survive. My husband says the state will reflect on his previous earnings and could potentially end up increasing his support order? NOTE: My husband is out of work because there is no work, not because of child support obligations. Again, I cannot find any documentation on a 3 year income history window… Help?
Several big changes have occurred in our life in the past two years: 1) my husband has been fortunate enough (when times are good) to find construction jobs locally. This allows for him (us) to have more “overnights” and get more involved with his son’s life. 2) I recently bought our first home. 3) We got married earlier this year. The biggest change has been the involvement in his son’s life and it is one of the greatest joys we have ever known. I’ve done the tallying and for calendar year 2010 we’ve had 38% overnights. The mother allows us most weekends (if the son “wants” to come over) and at least half the holidays. So, now I am in the routine of picking him up almost every Friday and I take him to school the following Monday. Now mind you, the living accommodations between CP and NCP are two counties away. This is a VERY rural part of Florida.
My husband and I are starting to consider how to file for custody, or if we would even have a case for consideration. However, my husband feels there is no way the state will grant him custody since she must be proved as “unfit.” He thinks the best we could as for is 50/50 and still pay her the support. Also, he is afraid that once the mother catches wind of court proceedings, she’ll refuse visitation with the son (there are no parenting plans on file). I have been reading more and more into the “best interest of the child” statute and I keep reaching a foggy area I can’t seem to define. Here are the facts between the two families:
• She has two other kids by another man. She does not live with the father of the other children. She has never married and I do not think she intends to.
• She and the children have moved residences six times in the past two years. HRS was called on her (not by us) due to the living conditions of one of the six places (she stayed there two of the six times).
• She has a suspended driver’s license even though she drives on a daily basis. Despite all this she claims she cannot meet us halfway (two counties apart, the transfer times don’t always line up on a workday).
• She and the kids are on Medicaid.
• She cannot keep a job. All jobs I’ve known her to be on are minimum wage.
• We are very unsure of her whereabouts any given day. She has several different contact numbers, but they are usually out of service. If there were an emergency it would be a pure miracle we’d get in touch with her in a timely manner.
• Every now and then she’ll open up to me or my husband (why, I DON’T KNOW). She claims she’s back with the man she just left just so she can keep the kids warm during the winter. She said the kids were freezing at the previous place and there was too much drama. The place is literally a junkyard/pig sty. She also claimed he grows marijuana, just doesn’t want the kids to be around it. I’m trying to see if the man has a domestic violence charge. I believe he’s had restraining orders.
• The newest development seems to be she is opting to just let us have the son for Christmas and New Years since she is spending the holidays with the co-habitant. She is unsure when she will return from her trip with her co-habitant/current boyfriend/friend with benefits (?). She used to be very stubborn about having the son for the holidays. Apparently all the kids are going to their fathers for the holiday. We had the son all of this past Thanksgiving week. Our Thanksgiving was marred because she couldn’t be found leading up to the holiday. We called each day leading up to it trying to coordinate only for her to call us noon that day and want him back that evening. She was very spiteful upon his return and made it clear we might not get him for two solid weeks… only to get called to pick up the son the day after Thanksgiving (which we did).
• The son is on medication and the dose changes every few weeks. She refuses to indulge too much into to doctor’s visits, we usually don’t know about an appointment until the day of or after the fact. She’s also taken the son to the doctor for mysterious issues they cannot diagnose.
• The son has anger management problems with her and excitable moments at school. The school is to the point of suggesting therapy. He has good grades at school. He has no anger problems with us. If he does get mad/depressed/ sad, I talk with him about it and he’s a cheery child again. His teacher is even telling me to keep up whatever I have been doing with him. He will bring toys to our house and says he wants to keep them with us.
• Have witness at least once where the mother told the child his father lied to him when it was a misunderstanding. (A pickup being sometime after school, not as soon as he got home). I had to play mediator that day because she would not pick up the phone and I don’t think she recognized my number when I did get through. This incident has prompted an absolute pickup time on a certain day unless scheduled otherwise.
• She’s informed us of the not coming over for the weekend (for whatever reason with or without an attitude), we make our own plans, and then she’d call and say we need to pick up the son. Remember: two counties apart.
• She has gotten government provided tutoring assistance for him without taking into consideration of the family dynamics (her living accommodations and our house).
• My husband and I have been together for almost 8 years, but married almost 1 year.
• I own our home
• We attend church and Sunday school regularly
• We pay for his school field trips. I email his teacher pretty much weekly to check up on him or drop things off with his teacher as required.
• We sign him up for extracurricular sports and maintain schedule best we can.
With these facts in mind, do we have a case for full custody? Should her and my husband agree to a planned parenting schedule, first? Or are we just opening up a can of worms? I have been keeping record of everything. Some things I don’t have hard evidence of, but it is a known fact that I am sure she would not admit to. My husband stated the judge was real hard on him during the initial child support order and he is hesitant to go back to court, especially if there is a chance he gets the same judge. Due to my income, we do not qualify for cheaper legal assistance. We still have to save up a few more months for a retainer. Her on the other hand, single mom, no job and three kids… the state will help her to no end. I do fear that her living conditions and routines shall be detrimental to the son’s continued growth and education.
Thanks in advance.
Re: Best Interest of the Child
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Quoting
pamiesue3
My husband and I are starting to consider how to file for custody, or if we would even have a case for consideration. However, my husband feels there is no way the state will grant him custody since she must be proved as “unfit.” He thinks the best we could as for is 50/50 and still pay her the support. Also, he is afraid that once the mother catches wind of court proceedings, she’ll refuse visitation with the son (there are no parenting plans on file). I have been reading more and more into the “best interest of the child” statute and I keep reaching a foggy area I can’t seem to define. Here are the facts between the two families:
• She has two other kids by another man. She does not live with the father of the other children. She has never married and I do not think she intends to.
Irrelevant.
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• She and the children have moved residences six times in the past two years. HRS was called on her (not by us) due to the living conditions of one of the six places (she stayed there two of the six times).
Irrelevant if Dad didn't do anything about it then.
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• She has a suspended driver’s license even though she drives on a daily basis. Despite all this she claims she cannot meet us halfway (two counties apart, the transfer times don’t always line up on a workday).[quote]
She'll eventually get pulled over. If Dad hasn't done anything about it - in other words, he has "allowed" her to continue transporting the kids wherever even though he knows she has a suspended license, he's basically condoning it.
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• She and the kids are on Medicaid.
• She cannot keep a job. All jobs I’ve known her to be on are minimum wage.
She's not legally required to have a job.
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• We are very unsure of her whereabouts any given day. She has several different contact numbers, but they are usually out of service. If there were an emergency it would be a pure miracle we’d get in touch with her in a timely manner.
She is under absolutely NO obligation whatsoever to keep Dad (and especially you) informed of her daily whereabouts.
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• Every now and then she’ll open up to me or my husband (why, I DON’T KNOW). She claims she’s back with the man she just left just so she can keep the kids warm during the winter. She said the kids were freezing at the previous place and there was too much drama. The place is literally a junkyard/pig sty. She also claimed he grows marijuana, just doesn’t want the kids to be around it. I’m trying to see if the man has a domestic violence charge. I believe he’s had restraining orders.
Not really going to make a difference unless Dad can show that the kids are in danger.
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• The newest development seems to be she is opting to just let us have the son for Christmas and New Years since she is spending the holidays with the co-habitant. She is unsure when she will return from her trip with her co-habitant/current boyfriend/friend with benefits (?). She used to be very stubborn about having the son for the holidays. Apparently all the kids are going to their fathers for the holiday. We had the son all of this past Thanksgiving week. Our Thanksgiving was marred because she couldn’t be found leading up to the holiday. We called each day leading up to it trying to coordinate only for her to call us noon that day and want him back that evening. She was very spiteful upon his return and made it clear we might not get him for two solid weeks… only to get called to pick up the son the day after Thanksgiving (which we did).
She may feel that you're interfering too much - as a practical and legal matter, this really between Mom and Dad - not you.
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• The son is on medication and the dose changes every few weeks. She refuses to indulge too much into to doctor’s visits, we usually don’t know about an appointment until the day of or after the fact. She’s also taken the son to the doctor for mysterious issues they cannot diagnose.
So what is Dad doing about this?
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• The son has anger management problems with her and excitable moments at school. The school is to the point of suggesting therapy. He has good grades at school. He has no anger problems with us. If he does get mad/depressed/ sad, I talk with him about it and he’s a cheery child again. His teacher is even telling me to keep up whatever I have been doing with him. He will bring toys to our house and says he wants to keep them with us.
Be careful. You're coming close to overstepping your role as stepparent.
Is the child in counseling?
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• Have witness at least once where the mother told the child his father lied to him when it was a misunderstanding. (A pickup being sometime after school, not as soon as he got home). I had to play mediator that day because she would not pick up the phone and I don’t think she recognized my number when I did get through. This incident has prompted an absolute pickup time on a certain day unless scheduled otherwise.
Irrelevant.
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• She’s informed us of the not coming over for the weekend (for whatever reason with or without an attitude), we make our own plans, and then she’d call and say we need to pick up the son. Remember: two counties apart.
Irrelevant.
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• She has gotten government provided tutoring assistance for him without taking into consideration of the family dynamics (her living accommodations and our house).
Irrelevant.
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• My husband and I have been together for almost 8 years, but married almost 1 year.
Irrelevant.
Irrelevant.
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• We attend church and Sunday school regularly
Even more irrelevant than the rest of the stuff here - hon, Dad shouldn't even go there.
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• We pay for his school field trips. I email his teacher pretty much weekly to check up on him or drop things off with his teacher as required.
WHOA. This is NOT your role. YOU are not the parent - frankly I can understand why Mom might be being a little difficult.
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• We sign him up for extracurricular sports and maintain schedule best we can.
And does Mom agree with this? Why are YOU doing anything?
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With these facts in mind, do we have a case for full custody? Should her and my husband agree to a planned parenting schedule, first? Or are we just opening up a can of worms? I have been keeping record of everything. Some things I don’t have hard evidence of, but it is a known fact that I am sure she would not admit to. My husband stated the judge was real hard on him during the initial child support order and he is hesitant to go back to court, especially if there is a chance he gets the same judge. Due to my income, we do not qualify for cheaper legal assistance. We still have to save up a few more months for a retainer. Her on the other hand, single mom, no job and three kids… the state will help her to no end. I do fear that her living conditions and routines shall be detrimental to the son’s continued growth and education.
Thanks in advance.
What has CHANGED in the child's circumstances?
Most - if not all - of what you're listing here is irrelevant. Because Mom has custody at the moment, Dad is no longer on an equal footing in terms of custody; it is no longer about proving "best interest". If Dad wants things to change he's going to have to show that change in circumstance.
I do not see a case here.
The next part - well, I'm also a stepparent. I'm really not wanting to be harsh, and I'm going to say this as gently as I can. It is not meant to offend you, ok?
You are FAR too involved in your husband's legal matter and, possibly, coming very close to usurping Mom's role. This can seriously backfire on your husband. It's very difficult trying to find the balance between supporting your husband and stepchild, and overstepping. You are coming across as getting very close to that line. I've actually been there and done it - in fact I was far worse and almost caused my then-partner to lose visitation with his kids. So please, take this as a gentle warning.
Let Dad handle his ex, his son and his legal matters. Don't do what I almost did.
:)
Re: Best Interest of the Child
I can see right off the bat why mom would not be so willing to work with you guys because you are way over stepping your line! I am a step mom to a 9 year old girl my two oldest boys also have a step mom and she try's things like you and I have finally got it wrote into our order she needs to STEP BACK and let dad and myself handle school things (emailing the teacher why would you anyways that is dad's job or mom's job and really every week wow)
If there is NO court order for visitation already then file 50/50 he has a shot at that since he has been there yes she may take son back until court date but after court date then there is nothing she can do. For the child support call a lawyer in your area and just ask if that is a rule they will know and can tell you for free. SOn is now older and things come into play before DID he go to daycare? )mom would get more child support for that) Did she use to pay for health insurence (she would get more for that), does dad get to claim son of taxes? (she would get more C/S for that). If he is aloud to go back for child support he needs to show mom does not pay for health care (so no creidit given to her and C/S lowered right there) if son is no longer in daycare (C/S lowered) show his unemployment they will then base what he can make as aroun $12-13 an hour if he says he can not find a job right now making what he is used to but they will input something in there even if he is not working but at the same time if mom is not working dad can have court input a fake income for her also. But really call a lawyer set up a free counsult if needed and ask these questions or go to the court and see if they have a cheap laywer there that you can see for 30 minutes usally like $30.00- BUT THIS ALL NEEDS TO BE FROM DAD NOT YOU- don't call her, text her, email her she can use that in court and get it in the order to make sure you have no contact with her I did this with my ex's wife she was looney and always trying to text, email me on matters of MY sons
Re: Best Interest of the Child
Youch! You guys made me cringe.. But thanks guys for the input. I do understand there is a fine line existing as the step-parent and staying in the background. I meant to respond sooner, but I don't want to come across as a "subborn step-mom who doesn't get the point." I think I need to find a non-crazy "step mom" forum to to vent on some subjects, LOL! I think I interchanged between the terms “we” and “my husband” too liberally. Here’s clarification: I DO NOT text, email, call or in any other way contact the mother unless my husband has been unsuccessful and/or instructs me to do so. I have learned to redirect the mother’s questions and inquiries to my husband when stuck in one-on-one situations with her. Since I work in the mother’s hometown, it makes it easier on my husband and me if I act as chauffer. It exposes me to more than I wish, seriously.
Also, I am on this forum to help my husband. I am more internet and research savvy. He easily gets frustrated with the legal jargon, interpretation, and research, what’s legit and what’s not. There is a lot of gray area to him in this field. I can do it faster and more efficient and then relay it to him.This also applies to email and anything technology based. Yes, this is definitely his responsibility to research and I always discuss my findings to him. Right now, we'll take all the freebees we can when it comes to legal paperwork and research.
Now, back to the responses:
Right now, between the parents, they do not deal with each other unless they have to. I have even discovered this includes getting the state involved for assistance on her part. One thing I do know is that my husband hasn’t seriously pursued a custody or a modification of support order because he does not want to, in short, “piss off” the mother, complicate things, and potentially jeopardize his relationship with his son forever. The term “letting well enough alone” and “don’t ruin a good thing” comes to mind for both her and the court system. We're both aware this could potentially kick him in the butt if he does go to court... (said lack of taking action...)
With that being said, it causes me to look deeper into 61.13(3) based on the living situation and lifestyle of both parties.
Part (a): The mother has always been the custodial parent. It has seemed the most reasonable option up until recently due to the father's line of work. If you don’t live in a very rural setting, it might be hard to understand. The mother allows the son to visit the father whenever the son wishes. This has been turning into almost every weekend and well over 50% of non-school days. This is my stickler and I think it would pose an issue in court, but that’s why I am here asking: The transportation burden is always put on the father. There is nothing on file stating the transportation responsibility. My husband has informed his son (since the mother allows this) that when he has decided to (or not to) visit a parent, he will be stuck with that decision upon father/wife’s return to the mother’s hometown since it is so far away. Example: I proceed to pick up the son as planned Friday 2-3 hours after work has ended, the son has unexpectedly decided to stay with the mother and informs both parties at pickup time, I go home without the son, the mother calls the next day telling the father the son wants to be picked up. The scenario has turned the other way a time or two as well in which the son has been picked up and then changes his mind to go back to his mother’s after traveling to the other residence. Is the father seen as overbearing and not allowing access? Or is it seen as a form of discipline and responsibility??? Is the refusal of the mother to transport the son, despite receiving support, lack of financial means, or ability to transport, have anything to do with this? My opinion doesn't count... but, I think the parents need to stick to a plan. When I get off of work, I ready to go home... But, at the same time, I know, it comes with being a step-parent, sigh... feeling defeated...
Part (b): There is no doubt the love and affection between the child and respective parent.
Part (c): Mother: receives Medicaid (free medical and dental), Child Support, donations from local church. Father: Due to father’s line of work, it is more cost effective to have wife/stepmother pay for health insurance. If requested, wife can cover step-son on policy with additional insurance premium. Father takes part in purchase of school clothes and supplies, etc.
Part (d): Mother: and children have lived in six different places in under two years. Reasons for relocation consist of breakups, HRS, love interests, drama and safer child environment. She has informed me that she is at the current residence because it is the only place she has available to keep the children warm. Father: has maintained same relationship since child was born, married, moved only due to wife’s college/job situations.
Part (e) Already stated in previous post. Need a better understanding of the legal definition of permanence?
Part (f) They’re both morally fit… Naturally, opinions abound…
Part (g) Both parents seem mentally and physically fit. However, the mother could use some more meat on her bones and some dental reconstruction. I know, I know… I’m not a doctor…
Part (h) Mother’s home: son has noted anger problems, excitable at school to the point of required disciplinary action, no known extracurricular community events, on the verge of required counseling. Father’s home: No noted anger problems, typical boy as other family boys, involved with community activities and events.
Part (i) The son is 8 years old… he’s stated a preference, but it’s not one of those possible outcomes.
Part (j) Father has several means of providing communication to the mother. Father does take care not to express feelings regarding mother in presence of son. Close to impossible for father to get in touch with mother due to disconnected phone lines, etc. Mother has said questionable things directly to son or within earshot… Naturally this would lead up to a he-said, she-said debate that’s probably not worth going through. Father has been able to provide transportation, mother has not.
Part (k) No known domestic violence on either part, however, the mother’s “significant other” is questionable.
Part (l) No known records on either part
My husband knows almost for a fact that the mother will not relinquish her role as custodial parent despite the children’s living conditions, nor go without a fight on a modification of support (decrease). We’re talking about poverty versus middle class. Don't get me wrong, my observations of her show her being a very loving parent. But other times... it's hard to see a child go without or keep my composure, not to mention my husband's! See examples AND clarifications below:
SUSPENDED LICENSE: The mother has run at the mouth and explicitly stated she has had a suspended license. It is known that she’s regained it, lost it, back and forth. My husband isn’t responsible for knowing the status of her license. However, when asked by my husband whether or not to meet halfway, her response is typically she does not have the financial means. No one said she had to be the driver.
JOB & SUPPORT: My husband is out of a job as well. But does the reason for unemployment play a factor? I’m just speaking on the terms of character and reasons for non-work history… This leads to: How long must my husband wait before he can apply for a modification of support? I know the state does it automatically every three years. If he were to continue pursuing work away from home, yes he could potentially earn the same income, but then it would compromise the time he spends with his son and his chance at custody. Must my husband rough it out another year with hardly any income but yet still make the same support payment, even if he is getting his son almost half the year? It’s the fragile balance between keeping up on enormous support payments, no work, and chance losing his license due to the support payments. How far back in work history does the state look into the “potential income”? If the state looks back too far, he’d be forced to work overseas again due to a high obligation, which then would compromise the father/son relationship and custody as well.
REASONABLE TIMING: My husband, nor I, care where the mother is. In my defense on the previous post and sake of court argument, how accessible is one parent required to be to the other when it comes to the health and welfare of the child? There was an incident at school and that is what brought up the question. The teacher actually got in touch with me after I emailed her about dropping off permission slips, so I got in touch with my husband to let him do the footwork. There was another situation where both parties knew they had to plan around the child. The father made several timely attempts to contact the mother to make arrangements only to led on an immediate “wild goose chase” to meet her demands. Is it something the court frowns upon? And, also in my defense, circumstance has it that I go to the school for my husband due to location, planning, and budgeting. Due to this exposure the teacher has come to me since I was present and has asked for help from us in certain areas.
ALLEGATIONS: This goes along with the suspended license issue above. When the mother makes questionable statements, whether to my husband or I, regarding the environment the child is in, what should he do? File anonymous tips to the local law enforcement? Write everything down and act at a later date? Surely if law enforcement kept showing up to her place after she mentioned something to my husband or I, there is no doubt she’ll restrict visitation. All she has to do is “disappear” again.
CHILD RECORDS AND HISTORY: My husband is still learning his legal rights to his son. Simply stated, due to the complexity of the legal system, terminology, and ability to research, and financial position, and hence you find me on this forum with inquiries. I just recently informed him of FS 61.13(2)(b)3. Yes, I know, he needs to do it... sigh...
OTHER CHILD COSTS & CONCERNS: My husband and I have noticed an influx of field trip forms with fees. Regardless of how they find their way to us, my husband always speaks to the mother and typically she cannot afford the fees. The field trips usually occur once a month and average $5, no big deal. My question here… doesn’t this come into play somewhere??? Also, as required, I drop off the off the forms at the school and get confirmation from the teacher to make sure she acquired the materials. We’ve heard conflicting reports about the son's fieldtrip attendance and figure it best to send the money directly to the school. Since real-time communication and grades are more technology based these days, my husband again relies on me to get information and find school calendars, etc. The mother will seldom openly offer this information, and she as well is VERY technologically inept, sigh... Since he has been more vigorous for information, the teacher now calls my husband as well when she has problems with the son. Oh, and there are no “daycare costs” on either party. There is enough family and friends to go around, at least on my husband's side.
EXTRACURRICULAR ACTIVITIES: Church is our own activity. The mother has expressed no concern over this. The parents discuss other activities, especially if there is a registration fee. The mother’s typical response is she cannot afford the fee, but the son can do it if he wishes.
Basically, my husband seeks to at least decrease his support amount since he is out of work and spends almost half the year with his son. I can see this happening. If there is a case here, he’d like to seek custody. However, he is afraid of ruining what he does have by not “letting well enough alone.” The mother allows the son to visit as the son wishes, even on days she wants to keep him. My husband has told the son he's welcome over anytime, but he's not going to run all over the world at any given minute to appease the son's wish to switch homes, I hope that makes sense... FS 61.13(3) really caught my eye and I have been trying to interpret it and apply it to this situation. And yes, he would be the one filing, it's not for me to drag him to the clerks office. However, if/when he does file, I already know that I'll be the one finding the forms for him if an attorney charges extra.
Based on the provided information, is there reason the court would grant fewer visitations to the father? Should he wait until the son comes of age? Are there other statutes that apply? I know the new HB 907 will cause some changes to help with the support amount. Must he file a UCCJEA affidavit or are the parents allowed to reach a mutual agreement (if at all possible) and file it on record? How would the courts view the son's "immediate wishes" to go to the other parent and the parental response? What if both parents are out of work, however, one household lives on the poverty level whereas the other does not, does the court system favor one versus the other? My husband and I both see a more stable environment and better potential to provide for the son. That potential will only increase when he does find sustainable local work.
Caught in the Middle
Re: Best Interest of the Child
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Basically, my husband seeks to at least decrease his support amount since he is out of work and spends almost half the year with his son. I can see this happening.
This is a possibility.
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If there is a case here, he’d like to seek custody.
Unless the child is being abused or neglected or there is some other significant change in the child's circumstance, no. Your husband is correct - the best he can hope for is 50/50.
Re: Best Interest of the Child
The problem is Dad is no longer on an even footing. Had they been just divorcing, he may have had a much better stab at primary custody. But, he's not - Mom has been the custodial parent and in order for that to change - and as we've said (and btw, I'm also a stepparent...) that requires a change in circumstance.
I see no such change.