Can You Get Custody Modified Based on a Stepparent's Illness

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

Recently I was told by my ex husbands new wife that she is 'dying from cancer'. The children primarily live with them and she has been the primary caregiver for the children (getting ready for school, helping with homework and etc). In light of this I chose to file for change of the primary residence from their father to me. I served him in the appropriate time and I never got a response. I have checked the case on the courts website and the only thing he has filed for is a substitution of attorney. (I should also add that we share legal and physical custody, they just primarily live with him')

Do I have a snowball's chance in hell of changing the primary custody over to me based on her illness?

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Quoting Ohyeathat

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

Recently I was told by my ex husbands new wife that she is 'dying from cancer'. The children primarily live with them and she has been the primary caregiver for the children (getting ready for school, helping with homework and etc). In light of this I chose to file for change of the primary residence from their father to me. I served him in the appropriate time and I never got a response. I have checked the case on the courts website and the only thing he has filed for is a substitution of attorney. (I should also add that we share legal and physical custody, they just primarily live with him')

Do I have a snowball's chance in hell of changing the primary custody over to me based on her illness?

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Honestly no, I don't think that you do. In fact, some judges might think you callous to even try.

Based on the illness and nothing else? No facts or allegations that the illness is affecting your ex's ability to care for the children?

Frankly I am concerned for the step mother as well as the children. I have watched her lose a tremendous amount of weight and hair in just a months time. Their father has become increasingly combative over communication about the children. He claims that he doesn't have to talk to me about anything and threatens me with the police every time I try.

How will his not filing a response affect him in court?

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Quoting Mr. Knowitall

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Based on the illness and nothing else? No facts or allegations that the illness is affecting your ex's ability to care for the children?

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He will not communicate with me about the children. Doctor appointments, school activities, misbehavior at school and even simple illness of the children. The children's grades have dropped since the last report card and he won't even talk to me about how we can help them do better. I have been trying via email for over 7 months to work out a parenting plan and he refuses that as well.

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Quoting Ohyeathat

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Frankly I am concerned for the step mother as well as the children. I have watched her lose a tremendous amount of weight and hair in just a months time. Their father has become increasingly combative over communication about the children. He claims that he doesn't have to talk to me about anything and threatens me with the police every time I try.

How will his not filing a response affect him in court?

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He will not communicate with me about the children. Doctor appointments, school activities, misbehavior at school and even simple illness of the children. The children's grades have dropped since the last report card and he won't even talk to me about how we can help them do better. I have been trying via email for over 7 months to work out a parenting plan and he refuses that as well.

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His wife is dying and you are trying to take your mutual children away from him. What kind of emotional state do you think he is in at this point? I suspect that his actions are due to his stress and grief.

He has exhibited this behavior all through the divorce and since it was finalized he behaved as if he owns the kids

I wouldn't be pointing fingers at Dad if I were you.

Are you familiar with the concept of "less time with parent B because parent B is toxic"?

Familiarize yourself, and quickly. Because you're coming across as looking to go "nya nya boo boo" and not giving a crap about how this is actually affecting the kids.

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Quoting Ohyeathat

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He has exhibited this behavior all through the divorce and since it was finalized he behaved as if he owns the kids

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If you have raised all of these allegations before, and the court nonetheless gave him custody, the court is unlikely to change its mind upon hearing the same argument a second time.

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Quoting Dogmatique

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I wouldn't be pointing fingers at Dad if I were you.

Are you familiar with the concept of "less time with parent B because parent B is toxic"?

Familiarize yourself, and quickly. Because you're coming across as looking to go "nya nya boo boo" and not giving a crap about how this is actually affecting the kids.

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How have I made myself appear toxic? Is it because I would like to have the children in a less stressful environment? Or could it be that I want to give my ex time to support his sick wife? Maybe it's that I don't enjoy being yelled and screamed at because I ask about how we can co parent, or improve the children's grades and behavior? Or maybe it's that I don't think he should call me and my new husband foul names in front of the children?

I am not asking for complete removal of the shared legal and physical custody. Only that the children stay with me during the week. I am not even asking for a change in visitation.

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Quoting Mr. Knowitall

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If you have raised all of these allegations before, and the court nonetheless gave him custody, the court is unlikely to change its mind upon hearing the same argument a second time.

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I tried my best to resolve these problems before bringing it to court. It has never been brought up in court before. The courts choose to give him custody because the kids had been settled in a school for a month. But he has since moved them from that school and our oldest is going to middle school in the fall.

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Quoting Ohyeathat

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How have I made myself appear toxic? Is it because I would like to have the children in a less stressful environment? Or could it be that I want to give my ex time to support his sick wife? Maybe it's that I don't enjoy being yelled and screamed at because I ask about how we can co parent, or improve the children's grades and behavior? Or maybe it's that I don't think he should call me and my new husband foul names in front of the children?

I am not asking for complete removal of the shared legal and physical custody. Only that the children stay with me during the week. I am not even asking for a change in visitation.

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You are requesting a change in custody.

Your question was directly relating to Stepmom being terminally ill. It's not until now that everything else is a problem. But that aside, I can - and bearing in mind I have direct experience with kids losing a parent - honestly see that you really need to look at what you're asking, and what the kids need.

They've lived primarily with Dad and a second Mother figure for at least 6 years, right? You're Mom, and nobody can take that away from you (and nor should they). But she's also a mother figure. She's arguably spent more time doing the parenting than perhaps you OR Dad. Is it truly fair to take the kids away from someone they obviously love, specially in the knowledge that she's not going to be around much longer?

It's not about you being yelled at. It's not about what he calls you. It's not about you, at all. It's about you pulling what is, at least on the surface, easy to perceive as a dirty trick while the kids need their father and their Stepmom more than ever and then having to deal with the aftermath. Because trust me - if they figure this out as adults, you may end up being very lonely later in your life.

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Quoting Dogmatique

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You are requesting a change in custody.

Your question was directly relating to Stepmom being terminally ill. It's not until now that everything else is a problem. But that aside, I can - and bearing in mind I have direct experience with kids losing a parent - honestly see that you really need to look at what you're asking, and what the kids need.

They've lived primarily with Dad and a second Mother figure for at least 6 years, right? You're Mom, and nobody can take that away from you (and nor should they). But she's also a mother figure. She's arguably spent more time doing the parenting than perhaps you OR Dad. Is it truly fair to take the kids away from someone they obviously love, specially in the knowledge that she's not going to be around much longer?

It's not about you being yelled at. It's not about what he calls you. It's not about you, at all. It's about you pulling what is, at least on the surface, easy to perceive as a dirty trick while the kids need their father and their Stepmom more than ever and then having to deal with the aftermath. Because trust me - if they figure this out as adults, you may end up being very lonely later in your life.

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Where do you get the idea that they have lived with this woman for 6 years? You are making some very huge assumptions based on very little information.

Oh, I probably misread 7 months as years. Mea culpa.

You're in a no-win situation if that's all you have.

If you get custody, there's a good chance that the kids will resent you for not letting them stay with Dad during his time of need.

If you don't, then you're not going to be happy with it anyway.

Win/win = Leave it alone. Make it clear that you'll be there to help the kids (and yes him, actually) through their time of grief. Reassure them that they won't have to deal with an upheaval during an already difficult time.

From a purely personal point of view - and yes, I did misread and apologize for that - take what you can from this, k?

It gets convoluted so bear with me.

My girls lost their biological Dad when they were little. They never actually got much of a chance to grieve. Then they lost their mother, too. Mom at the time was married to my husband, and both girls were adults (but only just, for the youngest). The family dynamic was different to be sure. But when she died, it hit them massively and we're still dealing with it (and the eldest is pushing 30). Part of the problem was a sort of compounded grief.

For several years, after Dad (technically StepDad) and I got together, I've been the sounding board. They were so bloody mad at their mother and then (in the eyes of the kids) she left them, too. The resented (and still do, to a degree) her. It's taken us a lot of hard work to get them to the point where they're no longer seething with anger, and to accept that nobody is perfect - least of all parents.

Had they been allowed to grieve properly (and much as I understand there's no wrong or right way to grieve, there is still a process of sorts), things might have been different. We'll never know. I can hardly hold that against their Mom though.

The point I'm trying to make is that there is a parental figure as well as Dad. She'll actually go through her own anticipatory grieving, too. If they can involve the kids as much as possible (and as much as is realistic - the two aren't necessarily the same thing), believe it or not it will be of a huge benefit in the long run. But take them from their primary residence while Dad (and yes, Stepmom) need all the love they can get, and it could result in major problems later on.

You're Mom. Nobody is going to take that away from you. And while your concern is natural and understandable, we're not talking about a custodial parent who is terminally ill and has nobody to help out as needed.

You have admitted that she is the primary caregiver. And you've admitted that her condition is the only reason that you filed. If it were me? I couldn't do it. I couldn't put the kids through that.

And yes, I agree with the others that there's a better-than-decent chance that you'll come out of this worse off and for far longer than you can imagine.

It's your choice though.

For what it's worth the cancer is being kept a secret from the kids. There are other issues I have brought up in my declaration.

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Quoting Ohyeathat

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For what it's worth the cancer is being kept a secret from the kids.

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We should always punish a parent for not wanting to bring that undue burden upon the children. I'm telling you... if your motion mentions that you're asking for a change in custody because stepmom is dying of cancer, I'd like to be a fly on the wall of both the judge and the mediator once they get hold of you. No one likes punitive filings, especially those who cause further grief upon an already grieving parent.

Granted, you're going to do what you want to do so I'll just answer your question. Not only do you not have a snowball's chance in hell of a custody change, but you should also be happy to know that the notes the judge makes about this motion will be in that case file forever not only to remind the bench officer of this motion, but any other bench officer your case may come in front of in during the entire life of the case.

Wow. Just wow.

Thankfully, this forum does not allow editing after a certain time has passed.

Because this is the most stellar example of vicious "parenting" - and I use the term "parenting" very loosely - I've seen in a long, long time.