Father Seeking Full Custody - Pro Per

My question involves a child custody case from the State of: California

I am the father of the children. The children currently live with myself and my wife in CA and the mother lives in MI. Divorce and custody was finalized in CA courts in 2009; this custody and visitation modification is filed in CA.

Divorce was final Jan 2009 (possibly important to note that the divorce was awarded by default, she did not get a lawyer and did not show up to court); at the time it was decided via mediation that she should get 13% custody with school break and holiday visitations. She would need to pay for all travel involved to see the children.

I met and married another woman and she has been raising the children since November 2008 (we married in 2009). The children's mother has not seen the children since May 2008. She calls at her discretion; average is every few months. The children rarely want to speak with her over the phone, my oldest son will not talk to her.

I am in the military and I will deploy in the next year. The parenting plan currently states that the children would need to be sent back to their mother when this happens. This is not in the best interest of the children; they have not seen her in over three years and since the oldest is 7 he hardly remembers her. She is a stranger to them. The mother also has a history of being irrational and would emotionally and physically abuse the children if given had the chance. There are written declarations from witnesses which will be submitted to the court which will state this.

I have worked with the Family Law Facilitators office and filed the paperwork to gain full physical and legal custody and also to amend the visitation to none or supervised. The mother has not been served yet, but they have been filed with the court. Court dates are set. My hope for the future is that my wife (the children's step mother) will be able to adopt them but for now that doesn't seem like a possibility since their mother will not consent.

I am now looking into what kind of evidence I can supply to the mediator and the court to bring to light her character and to show what is truly in the best interest of the children. There are numerous family members who are writing declarations to attest to her character, her parenting style, how the children were treated under her supervision, how the children are treated by myself and their step-mother, how the children are thriving under the our care.

I am attempting to do all of this on my own since we (myself and step-mother) cannot afford a lawyer.

I'll bet that everyone who posts swears that they are the parent that is in the best interest of the children, that the other parent is awful, unfit, etc. I know that our family unit is what is best for the children. Their step-mother has raised them since they were 1,2 and 4 and they have all grown and thrived so much more than if they had been in their mother's care. How do I show this to the courts? How do I get them to really look at her? What kind of mother physically abandons their children for over three years, no cards, no presents on birthdays or Christmas, never anything, nothing.

I know that it is important that the court system have all the information to make the best decision for the children I'm just not sure of how to get that information in front of the courts, appropriately. If I just sit there in the mediation and accuse the mother, then it's just hot air and doesn't do the children any good. Please, any advise or guidance you can provide would be greatly appreciated.

Please explain how you know that Mom would abuse the children "if given the chance".

She slapped the children across the face, witnessed and documented in a declaration. She also has called our oldest son names such as "Devils' Spawn" and "Evil Child" I can testify to those statements. Also, one of her family members is writing a declaration stating the neglect and abuse that she has witnessed.

And what did CPS do when they were involved?

(I'm not trying to give you a hard time - but honestly, if this is the type of stuff you're submitting you're going to need hard EVIDENCE, not hearsay and statements).

You also need to be realistic. "No visitation" is EXTREMELY rare. Even sex offenders can have at least supervised visitation with their kids. So far I'm not seeing anything to justify long-term supervised visitation (unless Mom doesn't fight it in court); if she objects and you get a regular visitation schedule it will likely be supervised only in the short term while the kids and her get to know each other again.

I do feel that you might be poking a sleeping tiger here. I understand what your parenting plan says, but really if Mom isn't interested would she even bother with the kids during your deployment?

If the answer is no, you may end up regretting filing anything at this point.

When she returned the children to me in May 2008 all three of them had scabies and my oldest had a welt on him which he stated that his maternal uncle gave him but hitting him. I immediately called CPS in MI but they were unable to locate the uncle and closed the case as "inconclusive"

I understand that "no visitation" would be extremely rare. Mom won't fight in court. She won't fly out to CA, she won't file the papers to call in to court. She might call in for the mediation but she won't defend herself. During our first mediation she didn't explain anything when asked to by the mediator. Her responses were basically, "I don't know" or "whatever"

I know it seems like I'm poking a sleeping tiger but my concern is if I don't handle this now and trust that the situation will remain the same while I'm deployed; what will my wife do if mom decides to take the kids? I know that if mom found out I was deployed she would want the kids. There was a time in the past when she thought I was deployed and she harassed my wife until she talked with me on the phone as proof that I wasn't deployed. My wife would have no way, that I know of, to fight to keep the kids since she has no legal rights to the children.

May I also ask what you meant by "you may end up regretting filing anything at this point"? It's my understanding that the mediator cannot or will not change the current agreement any more than what we are asking for now. Is that not correct?

So CPS have concluded that there's no reason to withhold visitation or otherwise restrain Mom - hence you have nothing there. So even raising the issue that she "might" do something is a mistake. Besides, custody isn't modified because of what someone might do.

In order for you to modify the current agreement, which you've just filed to do, you need a change of circumstance. If you don't have that, it's not going to happen period. Remember this is no longer about best interest, but about that vital change of circumstance. And if the only CoC is the upcoming deployment, you're alerting Mom to the whole thing.

When Mom is served, she's going to know something's up. I know if it were me - and I've dealt with military custody on a personal level - I'd put two and two together immediately and figure out that you're being deployed and file immediately for a modification based upon an upcoming deployment.

Your family care plan should allow for your wife to have POA while you're gone. That doesn't protect you 100% obviously, and Mom can still - even if you managed to get no visitation by default (which would be overturned very easily) - file for temporary custody while you're deployed.

Thank you for your advice, your input is greatly appreciated. I'm not sure what to do now though since I've already filed; mom hasn't been served yet but I suppose if I'm going in I might as well have as many character statements and witness declarations as possible to show what's in the best interest of my children.

I guess I'll just have to hope for the best and pray, lots!

Dad, please remember too that character statements and declarations cannot be cross-examined. They are virtually always considered hearsay and inadmissible.

I do wish you luck - it sounds like Mom is basically AWOL (seemed to be an apt term :) ) , and your wife has done the raising of these kids. It sucks when the stepparent does that, and yet has no rights. I'm a stepparent, too.

Actually, this leads me to another question. Do you know when you'll be deployed? And is Mom paying child support?

I just thought of something: couldn't I argue that the CoC for my adjustment request is due to the maturation of my children and the lack of contact from the mother?

At the time that the original parenting plan was put into place the children hadn't seen in a few months. Now, it has been years, it would not be in the best interest of my children's mental health to put them on a plane and fly them half way across the country to spend two weeks with a family that they do not know at all.

My deployment is for June 2012 and no child support. She was ordered to pay but we (step-parent and I) did not enforce. I just filed to begin enforcing support.

A year ago Mom asked for me to send her legal papers to "Terminate her parental rights" after extensive research I discovered that the law does not allow one to simply terminate their parental rights - otherwise any parent trying to get out of paying child support would do this. I sent her custody modification papers (basically the same ones I just filed) and she said she signed them and mailed them...they never arrived. I'm sure she was lying but that's no matter. At the time mom and I agreed that if she signed the papers then I wouldn't enforce the child support. She didn't sign so here we are.

We cross-posted lol.

I'll wait for you to respond further ;)