I recently filed for custody of my son. I eventually gained sole custody by default in December 2014. His mother has now filed an ex parte motion for order to show cause regarding custody, support and parenting time. Her requests would give her sole custody, 400 a month in child support and she would have him 92% of the nights of the year, and I would provide health insurance. The way the order stands, we share him almost 50% of the time each and no one pays support. She has been extremely unreasonable and frequently exposes him to known allergens. What should I expect when we have our hearing? Will we argue back and forth both sides of the story? Or am I really just there to show why she shouldn't be granted all of these things? Will it be an all ornothing judgement orcompromised?
Without reviewing all the documents involved and knowing the history of the case, it's impossible to say for sure what will happen. (For that matter, even knowing all the details, it's still impossible to predict the outcome for certain; but it's especially difficult when all the information we have is a few lines over the internet.)
In general, each of you will have the opportunity to put on a case. Because she filed the motion, she will present her case first. She'll give testimony, of her own as well as possibly that of witnesses - we can't know who those might be in advance. You will have the right to ask her, and any witnesses, questions, so as to clarify or try to discredit the answers. Then you will put on a case by giving your own testimony and calling your own witnesses, and she (or her attorney) will ask questions after as well. The judge also will have the right to ask questions of any witness. The legal standard - what you will be trying to show - is, what is in the best interests of the child? Fairness to the parents, or the wrongdoing of the parents, has nothing to do with it, except as it relates to that. However, there is a presumption under Oregon law that it is in a child's best interests to have regular ongoing contact, and a meaningful relationship, with both parents. So you're not going to be able to keep the mother away from her son entirely - and you'll look terrible if you try it.
I don't quite know what you mean by "all or nothing." Most cases do end in some sort of compromise, where neither side gets exactly what they want. However, the court cannot order you to have joint legal custody unless you both agree to it. There is a presumption that the 'primary custodial parent' - that is, the parent who's been taking care of the child on a daily basis - should keep legal custody and most physical custody, but you've had custody of your child for a relatively short time, so that will not decide the case all by itself.
Ideally you should consult with an attorney in private, and be represented in this matter. There are a lot of things that an attorney can do for you that are impossible or impractical to do by yourself.
By "all or nothing" if you mean that one parent will get the majority of the overnights, yes, highly likely. If you mean will you two have joint legal after hearing is over, NO! The judge must award sole legal custody to one parent subject to a parenting time schedule for other parent. You REALLY need to take ALL documents to a custody attorney for review. NOW. The best $100-200 you will ever invest. Call around to first ask a few questions over the phone, then schedule an appointment to discuss documents and how to move forward. After the hearing, once the judge rules, you must live with the judgment for a long time.
There is a possible technical glitch here that we won't be able to accurately "guess" the answer to but you would probably need to take all the documents to date in your case to a lawyer to get some more accurate advice. Let me explain what I am wondering.
When a court first determines custody they are suppose to apply the "best interest of the child" standard. Then if the matter comes to court again, custody can only be redetermined if the person asking for the change can show a significant change of circumstances. However, the court will almost always determine that if there is an arrangement with a 50:50 shared custody, and either parent is not happy with this situation, that this is sufficient to qualify as a substantial change of circumstances and revisit the custody decision.
On the other hand, you have told us that the mother lost by default. That raises a lot of questions for me. Why did this decision get entered by default in the first place? What happened in the last month that caused the mother to file a new Petition? The answers to these questions may or may not significantly effect the outcome, but they are probably questions that the Judge will have. I am wondering why the mother didn't file a motion to set aside the default Judgment rather then bring a new proceeding.
In addition to all this, there is no way you can get really good advice posting a few short notes on a public website. If this case is important to you, which I am would assume it is, then you would be wise to at least invest in a conference with a lawyer to examine what are your strongest arguments and how you can prepare for this hearing and what types of evidence you can use at the hearing.
Also these types of conferences take more than an hour. The lawyer really has to spend time talking to you to get the entire history before they can begin advising you. So you should expect to pay for more than one hour of time. Pick your lawyer carefully. A more experienced lawyer may cost more but you may learn more in the time you spend with them. Hard to say but it is something to consider.
There are some nuances here that it would really help to explore with an attorney in person, and, if at all possible, through representation. First, don't get caught up in the language of the order to show cause. Even though it reads the opposite of this, she has the burden to prove that in order to change custody there has been a significant change in circumstances. (That should be hard to prove in a month.) As to parenting time, in order to modify parenting time she has the burden to prove that a modification is in the child's best interest. It may be that she will argue that changing residences so often is not good for the child and the child is not adjusting to splitting his time between the households on a 50/50 schedule. (Again, should be hard to establish since the last order was so recent.) Here is something that many attorneys and almost all pro se folks miss: the focus is on events AFTER the entry of the last judgment. If she wanted to litigate something from a year ago she should have done that before you got a default. You should be able to exclude almost all evidence of events prior to the entry of your last judgment. This can make a big difference. What she probably should have done was move to set aside the default judgment, but received some advice that she was not going to be successful or for some other reason chose this course of action. I know it is expensive, but you would greatly benefit from legal representation in this matter. There are a few technicalities in terms of the burden of proof and evidentiary objections that an attorney could really help you with. The other responses are correct that she will present her case first and then you will be able to respond. An attorney will be able to object properly to the evidence and help you frame your case toward the burden of proof and the custody factors (which makes all the difference.) You may also want (and may be required) to file a response. You could even ask that if the court finds that changing the parenting plan is in your child's best interest that you should be the primary residential parent with the majority of parenting time. The court can order whatever residential schedule the court finds is in the child's best interest. It does not have to simply do what you have now OR what she wants. Typically the court will impose one of the plans the parties propose, but can also order a custom plan or a county standard plan. Meet with an attorney for at least a consultation. Bring the motion to show cause, order to show cause and affidavit of support, as well as the judgment you obtained in December. Also, I would expect the court to greatly scrutinize her motion since it was brought almost immediately after entry of judgment. Part of the purpose of the requirement that a party show a change in circumstances is that the court does not want the parties to be back in court every 6 months. Good luck to you.
