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.