My situation is this; my ex wife and I share joint custody
in Nebraska. When my two sons (ages 5 & 2) are with her
they fail to get baths on a regular basis. once every two -
three days. My oldest son, I'll call him "J", has gone to
school dirty. My youngest "N", regularly comes back with a
diaper rash. When I have to give them back for her
parenting time, neither one wants to go, and "N" will
always cry louder the closer we get to her house and cling
on to me when I take him in saying "NO, Daddy's house!". I
recently found out she has two felonies pending in the
court system for theft by deception. Looking back on my
records, she was sited while exercising her parenting
time. She has also been in violation of several points of
the divorce/custody aggrement, all of which I can document.
My question is this, do I have grounds to petition for a
change to the custody agreement?
Thanks for the advice.
Remember, I'm not an attorney, and nothing I write is a substitution for what a good attorney in your area would recommend.
That said, I don't think you have a bad enough situation that a judge would be so alarmed as to make you sole custodian. But, it may be worth a consultation with an attorney in your area -- and take that attorney's advice with a grain of salt because the only way she/he will make money is to tell you to file for a custody modification.
I asked you to clarify what parts of the court orders she has violated. You mentioned (in an email not posted on the website), that among other things, she has refused to release the kids to you during the holidays, she disparages you and your family in front of the kids, and she won't let the 5 year old call you when he wants. You also said you have legal recordings of the conversations you had with your ex, wherein she admits the poor behavior you described.
The main reason why I'd suggest that now may not be the time to try to modify custody is that is sounds like your ex is headed down a path of being her own worst enemy.
I don't think you have huge odds to prevail right now. If you try and fail, your next attempt will be weaker (i.e., your ex's attorney will make you out to be a litigious S.O.B. who keeps dragging her back to court, and that it has nothing to do with the kids).
So, here's what I would do. Document everything that you outlined. Try to get friendly with the school administrator and/or teachers so that they may testify or write an affadavit at some point about the cleanliness of your older child. Take the younger child to the pediatrician for the frequent diaper rash. Subtly videotape the younger child's anxiety at returning to the mother. Wait for her to get convicted of the crimes, and get a record of it. Document your frustrated attempts to reach the children by phone. Next time your ex clearly violates the parenting schedule, try to contempt her.
Also, it's important to delve into why the younger child is getting so anxious at the exchange time. True, one possibility is that he likes being with you more than being with mom. But there may be other things to consider, before drawing that conclusion. For example, if the exchange is very tense or conflict-ridden between you and your ex, it could be that he is stressed out over the exchanges, not necessarily being with mom. Your hypothesis may be correct, but it also may not. Think about everything, of course, to rule out everything else.
In terms of waiting, parents who are challenged in their abilities to be responsible and stable typically don't change overnight. So, you continue to document everything. You want to get to a situation where 9 out of 10 people would say, "What the hell is wrong with that woman?"!
When you do get to court, the burden will be on you to A) prove change of circumstance and B) prove it's bad enough to warrant you getting sole custody. That's a big burden. The mother will have no burden to keep the status quo.
This is just my opinion, of course. Anyone whom you ask will only be able to give you an opinion, including an attorney. No person can predict how a family law judge will rule when you have a less than ideal situation, but one that doesn't constitute a major threat (i.e., plenty of young children get diaper rash, and plenty of parents don't follow ideal hygiene with their kids). I don't question your concern at all... I'm just laying out that it seems too early for you to succeed in court the way you're hoping.
This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.