Expert: Joyce A. Anthony - 5/17/2010

Question
My husbands ex-wife suffers from bipolar disorder with schizophrenic tendencies and they share joint physical and legal custody of their two boys now 14 and 12. In 2009 we had to take her to court because she showed up at meet the teacher night drunk and then later that night tried to commit suicide and was not taking her medication properly. The court let her keep custody of the kids because she had been a stay at home mom for 9 years and was considered the primary care giver. HOWEVER as a condition of her keeping her home as the primary address for the kids the court has ordered the ex-wife to stay in therapy, maintain her medication, have monthly labs done to ensure she is taking her medication properly, not talk poorly about my husband in front of the kids, not to drink or smoke around the kids, not to move out of the school district, to give my husband access to her medical records to ensure she is compliant and to pay 20% of medical bills. In the past year since the court has ordered these things she has broken ALL of the orders. Most concerning is that she has not got her labs done in over a year and the boys have told us that she is drinking all the time but they don't want to live with us because they don't think their mom can take care of herself without them. I would also like to point out that she is court ordered to bring the kids to our house every morning so we can make sure they have had breakfast and that they get on the bus. The court also ordered her to make sure she goes over the boys homework on the nights they are with her yet every morning my husband and I have to check their bookbags because 90% of the time the homework was not done. On top of all that the kids end up not having lunch about 85% of the time. She has also admitted that she spends her money on cigarettes alcohol and  taking care of her horse but she has no food at the house for the kids on a regular basis.
We are so frustrated at this point and plan to take her back to court. We feel like we are forced to be her babysitter and she is not doing her job as a mother to make sure the kids needs are being met properly. In your opinion what is the likelihood that the court will grant us full physical custody since she has not complied with the court orders? (we live in Missouri)

Answer
Hello, Concerned Step-Mom:

First, I must say these kids are lucky they have someone who is concerned enough to do so much for their safety.  Their reaction on not wanting to leave her because they want to take care of her is perfectly normal--but also psychologically harmful for them.  They need to be taken care of, not be caretakers.

That said, there are two things I would do as soon as possible. You need to go about this the correct, legal way, or risk losing the kids.  If you go through the proper channels, I'm willing to say your chances of gaining full custody are 99 percent.  I leave the one percent because the courts will want to examine your home situation to make sure it is appropriate for the boys.  Also, their ages mean they will be asked their preference and it will be considered--but their safety will be taken into account first and foremost.

Now...contact children's services with your information so you have an outside witness to the events.  If you can get any of her neighbors, the school authorities, etc. to write statements, that will also help.  In the meantime, return to court and explain your situation.  Have records from the original judgment handy.  This will help make this a continuance of the original case rather than a new one--which is to your advantage, as it shows a contempt of court.

Start a daily documentation of everything!  To show you are being fair to her, include both good and bad days--days they have eaten as well as those they haven't, for example.  Keep this record until the day you go to court.  You can include anything the boys say, but if you include things you've "heard", make sure you have something that backs that up--names, etc..

I hope this information is useful.
                                    Joyce A. Anthony