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Answer/Counter Suit to our petition to modify custody to 50/50

StepG's picture

Well we got it yesterday. We expected all things that it said. H is feeling very beat down right now about his past from 4 1/2 yrs ago. I hate to see him down. This might turn in to a long post so bear with me....

When BM and H were married H drank heavily. Now I will not say that BM put the drink in his hand but I will say boy howdy I would have drank too if I had to live with her. They divorced in May 2003. He struggled from May 2003 till Jan 2004 when he was arrested for a DUI to pay the child support, house note, alimony, and all his other bills. During this time BM was a terror one minute and then would come out and bring a 12 pack of beer to H and sit and drink with him and then mess with his head and then the next day be back to being a hag. Now H will admit his drinking was bad and that it existed in their marriage prior to ss being born and there is no excuse that would make it right what he did but his marriage to BM was so bad he used it as an escape. We think BM has borderline personality disorder. When they were married she would through such fits and yell and scream like she was being beat that H would go and stand out in his front yard so everybody could see him standing out there and see that he was not in there beating her. All friends that they had when they were married are no longer her friends and they will all say that she is one crazy b****. H was in jail from Jan 2004 till May 2004 for the DUI. He had to do time because he had previous DUI from before ss was born or thought of when him and BM would get into fights. Now I am not defending H in what he did cause it was wrong any way you look at it but I do understand how it happened and why. Now H and I were seeing one another prior to Jan 2004. So when he came home in May 2004 he moved in with me. He had a job within one week of coming home and she had a child support payment within 1 1/2 weeks of him coming home. Since H has come home in May 2004 he has held a steady job, been current on all child support obligations, re-paid the back child support from his time in jail, maintained insurance on his son, has had son no less than 150 days each year since then and has not had one single drop of alcohol, beer nothing! The last DUI that H got caused him to loose everything his house, his job, and his son. He has done nothing but build himself back up since then. He was recently baptized at church and is now an active member in the church we go to. H has paid publicly and privately for the wrong he has done.

So having said that here is what the petition addresses. BM brought up all of the above with his past. She only had 2 complaints that dealt with issues from May 2004 to now 1) BM stated that father does curse mother on a regular basis in front of child. To that we say gives us dates these cussings took place and the specifics of what it was about. H has made a valiant effort in the last 2 or more years to refrain from any kind of contact like that with BM. 2) BM wants our one night a week visitation taken away since we live 25 miles from the school and ss has to get up early and it is hard on him. Our response to that is H does all the traveling of those miles and BM does none of them and prior to H taking his son to school after weekly visit we had to have ss back to BM's at 5:30 am so he could go to sitter because BM and her boyfriend have to be at work by 6 or 6:30. So he has to get up early at her house as well. Also at her house he goes to bed at 9 and gets up at 5:30 where when with us he goes to bed btw 8 and 8:30 and gets up at 6. Other than those 2 complaints she had nothing about the here and now. Then she had counter suit for the alimony. She was awarded $6,000 flat amount alimony in the divorce and $140 week child support based on H income at the time of $40,000 a year. He was a subcontractor for a door company. Just so happen that was his most profitable year ever. Anyway BM wants to be awarded the alimony and for H to serve time in jail for not paying it. He made 2 payments on it prior to Jan 2004. Since his return home in May 2004 he has not done sub-contractor work. With sub-contract work you have to pay your own taxes and he was always good about paying them till the last 3 years of their marriage when BM and H both got into the money he put to the side to pay the taxes. Now he owes a nice amount to the IRS that he pays on monthly. Now the subcontractor job paid more per hour but was not steady income to rely on weekly. Sometimes he would go 2 or 3 weeks with no check then get a check for $1500 with no taxes taken out so to continue sub-contract work he would just be digging himself further in a hole. So he took on a regular job where he was taxed. Now the regular job ( he lays water line for an excavating company) pays less than the subcontract job it is steady money. So for the las 4 years H has paid the $140 a week and all back support making only $12 an hour. Yall do the math. So BM is suing for the alimony and that he go to jail. She is also suing that he does not have the $100,000 life insurance policy with her as beneficiary/trustee for their son if he dies. H does have the life insurance policy in place. One other detail about the divorce. BM kept the Jeep and H kept the house and each were to hold each other harmless of the debt of those things. H paid house note till he went to jail at which time BM had no place for her and SS to live she H let her move into the house and she was to pay the house note. She did move in in Jan 04 and moved out in May 04 not paying any of the notes. So when H got out of jail in May 2004 the house was months behind and she had filed bankruptcy so he could not do anything in the way of selling it. So BM filed bankruptcy on everything the Jeep, all her debt and the house even though she had quickclaimed the house to H's name. Well the car people repossed the Jeep and sold it for less that what was owed so they have called H several times wanting the $10,000 still owed on that Jeep. So BM also is suing that she had to file bankruptcy because of the house. Well BM got fired from her job one month after her divorce and was living on H child support. While H was in jail his mother paid for SS daycare. BM did not work and sent son to daycare.

So basically BM's complaints are all about the past and money! My question to all of you is will the judge care about what happened 4 1/2 yrs ago? Will the judge look at how H has changed his life and been active in SS life since his release? Will the judge throw him into jail over the alimony or will he re-work it to payments H can afford? In BM's papers she denied all things about not giving son his medicine,physically fighting with her boyfriend whom in the papers she refers to as fiancee and they plan on getting married. She denied everything. H is feeling very down as his past has been brought back up. What H did not pay publicly for his wrongs I have seen him first hand pay privatley for them. I also find it funny that BM talks about what an S.O.B that H is and other than dealing with her and the SS issues being with H is the easiest thing I have ever done in my life. He is a hard worker, breaks his neck to help others, he is a WONDERFUL father, a WONDERFUL husband. Could it be that BM truly was the problem all along... I wonder ss says that mom is mad all the time and her and bf fight all the time. Oh yeah and BM wants us to admit that the only information we have about them is information we get by questioning ss. Well if ss comes in walking on his bottom lip and we ask what is wrong and he starts talking we are not going to shut him down. He needs someone to talk too.

Sorry this was so long and thanks for reading. Please send advice or comments.

Comments

sparky's picture

Get notarized statements from everybody that can testify about his good character. Also, take witnesses with you, if possible, that can be sworn and testify about how he lost everything and flipped his life upside down. You need to negotiate the contract. Offer to pay the alimony, it is tax deductible on the taxes, and lower the CS where its suppose to be. After she gets the alimony if she doesn't report it she can get locked up for tax fraud. If CS is reduced it should counter act the alimony any way.

StepG's picture

is reduced paying the alimony will be no problem and will be over a lot quicker than child support would be. We have a list a mile long of people that said they would testify to H and his character. A lot of them are the people that knew them when they were together and know them now and cannot get over how different H is now not with her. thanks for responding.

Nymh's picture

I don't have any real experience with these types of claims. BM has at times tried to trash BF's reputation in court and with lawsuits but her claims are always thrown out immediately because the judge can see right through her. Since your situation is actually based on real past events I don't know what to tell you. Sorry Sad

Please let us know how it goes. I've got my fingers crossed for your husband.

*~So sayeth Nymh~*

Sita Tara's picture

I would say just go and be cooperative no matter what. If the court wants mediation, then H offers to work with BM no matter what, but that he does want more time with his son. I would not immediately offer to give up everything financially, but find a way to use that as an advantage regarding the past owed alimony. Such as, "if we go to shared legal and physical custody, and the tax write of is alternated/CS reduced, I will be able to make decent payments of $$$ a month toward the past alimony debt."

I really think that shows that your H is trying to be very fair.

I have a few questions too-

Is there a Guardian Ad Litem assigned for the child here?
Did your H's atty file a request for a psych eval?

Every state is different, but I will say that our atty told us going from shared parenting to Full custody like we did is EASIER than going from NCP to shared parenting or FC. He told us to think of it as a scale (the old kind where you added amounts to each side to balance or tip it.) If you are Non custodial going for increased rights and time, you have to prove that BM is not capable of handling FC on her own. If going from NCP to FC, you have to prove that BM is incompetent.

BUT to go from equal (50/50-shared) legal/physical rights to a child, to winning FC, you only have to prove that it's in the best interest (ie BM may not be incompetent as a mother, but she cannot co-parent/collaborate etc.)

Given the rough history between your H and BM, he must really show how much his has changed and grown. One way is to be patient with the court process, not try to sway the mediator or other "unbiased" professionals in the case (in quotes b/c they aren't always so, but you still can't lose your cool with them!)

Let BM be the one to be unreasonable, lose her temper, refuse to collaborate. And GET THAT PSYCH EVAL WRITTEN IN THERE!

"Om Tare Tutare Ture Mama Ayurpunye Jnana Putin Kuru Svaha"
~Sita Tara Mantra