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Primary caretaker father refuses to follow child's asthma treatment; is alienating; is conflict-ridden-- does mother have shot at custody change?

Your Question:
during the divorce i had nothing and as you have said, if i knew then what i know now, i would have never fallen for the psychological warfare. after 9 hours of mediation we entered into an agreement of joint physical/legal custody with my ex being designated 'primary residential parent'. when i questioned the meaning of that phrase, i was told that it meant only address and nothing more. it was signed by the judge in may of 2002... and has been a nightmare since. for my ex, this has always been about control and making me pay. i thought that would eventually go away, and that we would eventually be able to develop a meaningful parental relationship for our children. nothing has changed, even after he remarried.

from the day our divorce was final, nothing changed. i remained the primary caregiver, taking the children to all of their dental and doctor appointments, haircuts, and very involved in their school. he has been verbally abusive even showing that anger in front of the kids. it is really hard to believe... but he was never violent or verbally abusive in our marriage. after he moved out, i waited 6 months for him to change his mind and work on our marriage.. all the while he was stringing me along, seeing other women while i took care of our children. he became very violent and angry when i filed for divorce.. like he is a different person. i filed contempt charges against him in november 2003... no judgement yet. he has violated many portions of our agreement... violated visitation (which is 50/50) on many occassions, never followed the mediation guidelines of our civil order, has spoken disparaginly of me in front of our children, to our children and called me profane names in front of them... an most importantly medical neglect. our daughter developed asthma in november 2002 and initially he was cooperative in giving her the medication. but without my knowledge he stopped giving her the preventative and was smoking around her... contrary to physicians orders. it got bad enough that her pediatrician called social services for an investigation of medical neglect... he was warned. even now he does not follow her allergist's directions and exposes her to many animals she is allergic to and that flares up her asthma.

besides that, his basic feelings have been that 'they aren't your kids, you just get to visit them'. and that he makes all the decisions, to the point that even thought he has never taken them to the dentist or eye doctor or ever showed up for an appointment, he changed the physicians without my knowledge for his wife to take them... not even him (primary residential parent).

i know i'm going on and on, but it comes down to this. we had a hearing on the contempt charges and the judge basically said there were definately issues to deal with but wanted us to go to mediation before he ruled on it. so, to steam-roll the contempt case, he filed for modification to reduce visitation. i had no choice but to counter modification for change of 'primary residential parent'. I only wanted a judge to slap him on the wrist and possibly order us to co-parent counseling and for the children to still enjoy 50/50 with both of us, because that is what is best for them. now that is over.

i feel like that since our situation has been 50/50 and i have been the primary caretaker before and since the final judgement... 'primary residential parent' really doesn't mean anything in our case. but of course, i still bear the 'extraordinary' burden of proof to change 'primary residential parent' and he doesn't need much to change visitation.

I have a lot of evidence (recordings of vulgarity, emails, he hasn't paid medical bills, DCFS report, etc...). but do i have enough?

we have been ordered to a custody evaluator (an attorney evaluator). my first meeting with her is on tuesday. i know that i have to push the detrimental factors for modification. it is just hard to believe that it boils down to meeting 'substantial change in circumstances' to warrant the change out weighs 'best interest of the child'. hands down the 'best interest of our children' is here. they are wonderful kids and don't deserve this.

my post has been a little scatter-brained, but i am really together on this. i have been working hard on documentation and preparing my case.

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My Answer:

Okay, as you know, you've provided me with a ton of information (i.e., in addition to the above post). You may be long-winded... but you're definitely not crazy or irrational. MOST of your complaints are relevant about a child's welfare.

But there are reasons why you don't have a slam-dunk case right now.

First, because you're going for a custody modification, you have to show a significant change of circumstance from when the custody orders were made. That's a threshhold you have to argue, before the court even considers anything else.

Second, you have an attorney custody evaluator, not a clinical psychologist. You're depending heavily on the luck of the draw here. If the attorney cares only about the technical legal side, it may really damage your position. But if this evaluator is focused on "best interest" and employs his/her knowledge of law to push for a recommendation in the child's best interest, then it could benefit you.

All of that said, it's important for you to hammer the most persuasive points, rather than try to blanket your argument with everything.

  • It's a big deal if the father is repeatedly failing to follow the pediatrician's and allergist's treatments and recommended precautions. The fact that you have a record of the warning to him, in addition to evidence demonstrating he's likely continuing to disregard the treatment... it's my opinion that you could reasonable argue that by itself as a significant change of circumstance.

  • You say you have emails and recordings of the father saying that HIS family (with new stepmom) is the real family for your children. I don't think this by itself would be a change of circumstance, but I think it's good stuff for showing why he can't have majority timeshare (nor perhaps even half).

  • I think it's a reasonable statement that the environment at dad's house is detrimental to the daughter's health. However, you should let an expert (i.e., her doctor) provide testimony that exposure to smoke and animal dander severely compromise her health. But if it can be controlled by treatment (i.e., medication), it renders your argument moot-- though you can also say, "But he also refuses to give her the medicine!"

  • You mentioned in an email (not posted) that the judge stated the father is "definitely in contempt." I would suggest that you get a court reporter's transcript for that hearing and provide the corresponding page to the evaluator (and later to the judge). You didn't clearly describe what the judge felt was in contempt, but not following court orders is the third most influential factor for judges' future decisions, according to Marc J. Ackerman's research. It is to your benefit to remind the judge (and evaluator) that the father has previously been told by the court that he isn't following orders.

  • Depending upon how seriously messed up your daughter's stepsister is, it could be a good consideration. However, you would have to show how being around the stepsister is having a negative impact on your daughter (e.g., talking about sex, drugs, murder, crime, skipping school, etc). If stepsister is messed up, but doesn't really have an impact on your daughter, I think it's weak.

Here are my thoughts about other things you've mentioned, which I find weak or irrelevant:

  • Stepmom is caring for the kids. So what. Unless she's abusive, it's irrelevant. Start complaining about that, and you may be labeled jealous. I don't think this point would help you in any way... in fact, my own custody evaluator reported that the deep bond between my daughter and my wife (i.e., stepmom) is beneficial to the child.

  • Father isn't consistent in his punishment. Unless it is abusive, don't start arguing differences between parenting styles. It distracts from your stronger stuff. You can mention you believe that you're more focused on positive approaches to parenting, to which you believe your children respond better. If the evaluator wants to hear more, she/he will ask for more.

  • Father is controlling, conflict-ridden, etc. Blah blah blah. We all say that about our exes in conflicts. It may be true that you have little to do with the conflicts, but it has been my experience that evaluators and judges presume that parties at war have equal role in the conflict. Sucks for me. It may suck for you too... so I suggest you leave this as a mention, not as something to prove. I've been doing this for four years, and no one has cared that the conflict is 95% the mother's fault... likely because the majority of cases have both parties sharing the roots of the conflict.

Based upon your emails, I sense that you're much like me in preparedness, wanting to prove everything, etc. I'm the same way, so I can easily assume that your approach is about thoroughness... not control. Little about what you wrote to me is about "control", but it's rather wanting the dad to take care of his daughter. However, I can see that someone would perceive your "thoroughness" to be obsessive and controlling.

I'll warn you that I provided more than 200 pages of documentation and evidence to my custody evaluator. He didn't read most of it, and some of his report's conclusions about various conflicts were in direct contradiction to the clear evidence I provided to him. I think I would have done better if I hammered and pounded on only a few issues, rather than 30 issues. Then, even if the minor stuff was misreported, he wouldn't have missed what I was saying about the major stuff.

Also, none of my issues were as clear (right vs wrong) and with objective witnesses (health professionals) as your asthma/allergy situation. And while I was arguing the type of alienation you're describing, I didn't have the emails or voicemails that you have.

That's why I think you have a shot. But you've got a wildcard with the evaluator and a wildcard with the judge.

On the flip side of the coin, I asked you to tell me what bad things you've done in the past couple years. Based upon your answer, I don't see anything that would convince a court to give dad more time.

Good luck, and please let me know what happens.


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.

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