I am a non-custodial mother of two children ages 10 and 8. When my ex and I got divorced, I had agreed to joint custody. Two months after the divorce, my mother passed away suddenly. The children were primarily with my ex most of the year while I dealt with my mother's affairs. I am not one to make excuses, but I was severely depressed and he obtained a supervised visitation order based on my "mental issues", (He stipulated that he was to be doing the supervising)
Even though he has the order, he has allowed me to take the children unsupervised several times. This is his way of trying to reconcile. When I reject him, he uses the order to hurt me. I have talked to an attorney and am ready to get rid of this "paper ball and chain".
My question is...Does the fact that he has let me take the children unsupervised nullify the order? I have video tape of my children with me at my house, etc. If he felt that I was such a menace, then why would he allow me to be with them unsupervised?
Obviously, I don't know the details of the situation nor the reality of how much of a threat you are to the kids (if at all).
But, if we assume that whatever was the catalyst for the supervised visitation is no longer an issue, you should be able to get the orders modified.
I think you're thinking is right-on, in how you'd argue it in court. Unless he claims that you stole the kids without his awareness, if he let you spend time alone with the children on more than one occasion, then he must admit one of the following:
A) that you do not pose a significant risk to the children, or
B) that he willfully and intentionally put the children in harm's way.
So... if indeed you've resolved whatever mental health issues were going on (or are in successful on-going treatment), a competent attorney should be able to fix this for you.
Ask your attorney if it's worth propounding admissions onto your ex (i.e., where he admits/denies statements of fact, in a sworn document that is admissible in court) to get him to agree that on XYZ dates, you spent unsupervised time with the kids. If he denies it, your attorney can then produce the videotape, asking him if to explain how it is that it shows you were alone with the kids on multiple dates.
But anyway, find an experienced family law attorney.
A judge may want to be cautious in a new parenting plan (i.e., don't expect it to immediately go back to 50/50), but -- if everything you've said is true-- I imagine you'll get far more time with the kids than you currently have and you'll easily get the supervision clause dropped.
Also, it wouldn't hurt if you had a credible witness who can say you were alone with the kids on XYZ dates and the witness saw the dad willingly let them depart with you. A credible witness isn't a close friend or family member.