A few things. The idea is that the goal should be the "best interests of the child" but what does that mean? I think courts look for emotional and physical well-being, stability, the ability of the parent to care the child and ties to the area. Along with the age/health of the child.
I also like that you use real language and not legal-ese.
My caveats: I don't practice in this area of the law. I did take a 6 week course on kids in custody proceedings, but 'm not providing this as any legal advice. I don't know CA law.
My take on your declaration:
I, LITB, declare as follows:
I am the Respondent in this matter and have personal knowledge of the matters alleged herein, unless otherwise stated. I would testify to the same if required to do so by the Court.
I would like to take this opportunity to respond to the Petitioner’s declaration that was included with her ex parte and show the court disparity of who is being honest and who is being dishonest.
The Petitioner and her attorney accuse my attorney and I of committing “fraud on the court”, “falsely suggest”, “deceived this Court”, “false statements and concealment of the true facts”, “stoop so low as to make these false statements”, and “false allegations” only to turn around and file a declaration doing exactly what they accuse my attorney and I of doing.
First, I do regret including some of items in the “FACTS IN SUPPORT” of my ex parte that were hurtful to the Petitioner. I still stand by it to be completely truthful. I will admit that there will be items in this declaration that will be hurtful to the Petitioner, however they must be included in the defense of her defamation of my character in her the declaration of her ex parte.
When the Petitioner and I worked out the agreement in March, I was doing so for several reasons: 1. I did not want to drag our children through a custody battle thinking that it was in their best interest. 2. I did not know how I would be able to care for our children being a full-time employee and a single parent. 3. I was going to look for employment in New Mexico, because I feel that it is in the best interest of our children to have access to both parents.
Below please find the reasons I changed my mind:
1. It simply was not in the best interest of our children. As their father, it is my responsibility to stand-up for them to ensure that decisions are made for in what will give them a fulfilling and stable future. 2. I flourished as a single parent, with the assistance of my mother, and was able to provide for my children’s physical and emotional well-being. I made every effort to shield our children from the difficulties of the situation. 3. After an extensive employment search in New Mexico, the highest paying prospect I have found, was a temporary position that paid one-third of my current salary. Therefore it i did not make sense for me and for my children to pursue such a poor opportunity of employment. The petitioner knows that the prospects for me in New Mexico are less than adequate. I mentioned this to her several times and it fell on deaf ears. The lack of opportunity in New Mexico job market would seriously hamper my ability to provide a stable future for our children. I did not want to place my children under any additional strain.
I made a mistake by drafting the agreement with the Petitioner without seeking advice from counsel. When I assured the Petitioner that everything was still in place, I was being completely honest. I did not pay $440 to Priority One to make changes that the Petitioner and I agreed to, only to get it back without the language we specifically requested. If they would have made the changes, I would have signed it. That would have been a bigger mistake than drafting it.
In paragraph 4 of Petitioner’s declaration, she accuses me of being, “virtually an absent and non-participating husband and father”. In paragraph 5, the Petitioner states, “my, mother, stayed with us and helped out by picking up the children from school, helping them with their homework, and helped me with cooking, shopping and cleaning our house.”
I very much appreciated the Petitioner’s mother assistance. However these are the same responsibilities that I have taken care of since D8 was born. Yet, the Petitioner portrays me as a “non-participating” father, while she conveniently portrays her mother completely different for doing many of the exact responsibilities.
In paragraph 7 of Petitioner’s declaration, she states, “I did all the work myself. I packed the entire house”.” It was a mutual decision that she resign her position in early March 2010, so she would be able to pack the house. I was already working and living in the Bar Area at that time. As for me not giving the Petitioner any “thanks”, I believe my track record proves otherwise.
Continuing on Paragraph 7, she states, “the house the Respondent had rented for us was utterly filthy.” The rental house, as with any rental, needed to cleaned, however it was otherwise safe and livable. I would not have agreed to allow my family to life in an “utterly filthy” environment. The Petitioner goes on to state, “Respondent never lifted a finger to help us, nor did he ever thank us.” This is simply not true. My effort involved taking apart all of our furniture, loading all of our belongings into 2 U-haul trucks and trailer in Las Vegas, driving them with the help of my Nephew 600 miles to the Bay Area, unloading them into the tri-level home that I currently reside in and putting all the furniture back together while still working at a full time job.
In paragraph 8 of Petitioner’s declaration, she claims that I, “demanded that I and the children return to San Francisco.” I did not “demand” that they return. In our entire relationship, I do not recall making any such demands of the Petitioner whatsoever. As a matter of fact, the day her mother got hospitalized, I orchestrated the plan to get the Petitioner and the children to Las Vegas to be with her mother as quickly as possible. Thankfully one of the Petitioner’s friends had a round trip airfare voucher that we were able to use for two 1-way tickets, so we only had to pay for one 1-way ticket. If we would have been unable to utilize the voucher, the plan was for the Petitioner to fly to Las Vegas, while I drove our children to be with her. The Petitioner fails to mention that our children had to be shuffled around between family and friends while she nursed her mother back to health and packed her mother’s belongings for the move. I understand that this needed to be done. At the same time, when I would speak to the Petitioner and our children daily, they were miserable. It is very hot in Las Vegas during that time of year. I wanted to get my family back home so we would be able to enjoy what remained of the summer together.
Continuing on paragraph 8, the Petitioner states, “He returned to Las Vegas a month later in August 2010 to pack up the remainder of my mother’s house and drive her back to San Francisco.” The Petitioner states this as if it was not a big deal. However, it required me to work my 40 hour schedule in 4 days, fly to Las Vegas on a Thursday night at my own expense, load a full-size U-Haul truck with the help of one of my friends and a cousin of the Petitioner, drive 600 miles while towing a car, and then unloaded the U-haul’s contents into a storage facility with the help of another one of my friends and the Petitioner. This task was accomplished in 48 hours and then I proceeded to work over 50 hours the following week. I do not understand how the Petitioner continuously vilifies me in her declaration when I have always done these types of things for her mother.
In paragraph 9 of Petitioner’s declaration, she states, “After he returned to San Francisco with my mother, things went downhill in our relationship.” Indeed, shortly after her mother moved in with us, our relationship went downhill at about the same time the Petitioner admittedly began her emotional affair. I had become frustrated with our situation as I felt taken advantage of. The Petitioner knows that I will help anyone, the one stipulation I have is, the person I am helping must put some effort into helping themselves. The Petitioner continues in paragraph 10, “The breaking point for me came when Respondent asked me “when is your Mom getting a job?” All I wanted to see was some effort.
In paragraph 9, the Petitioner states, “I thought he was having an affair.” In paragraph 11, she nonchalantly states, “I don’t deny that for a very brief period time, starting around September 2010, I had a brief emotional, not physical, affair with a friend of mine from high school.”
I am offended by the unsubstantiated statement by the Petitioner that she “thought” I was having an affair, conveniently when it was her that was having one. She of course never confronted me about this “thought” until she told me she wanted a divorce. As for her “brief” emotional affair with her “high school friend”, she states it in her declaration as if it is more innocent than a physical affair. There is nothing innocent about it. She was being reckless with our family. The only time she could conduct her emotional affair was during the day, while I was at work and she was at home supposedly caring for our son. I also recollect walking into our daughter’s room, where the Petitioner had covered her head while laying next to our daughter, I could hear her typing on her blackberry which she later admitted that she was texting her “friend”. I find it very disconcerting that she was so caught up in the euphoria of her emotional affair that she conducted it in the presence of our children.
In paragraph 11, the Petitioner states, “It was clear that there were irreconcilable differences between us and he was not dedicated to having a relationship with me and was not dedicated to being a dedicated father to his children.” I treasured my relationship with the Petitioner and took my vows to her very seriously. My track record as a dedicated husband and father speak for themselves and my supporting documentation for the hearing will prove the untruthfulness of this statement. Further solidifying the untruthfulness of this statement; if I was not a dedicated father, why would the Petitioner leave our children in my care and not come back to see them?
Before the Petitioner had told me that she wanted a divorce, I had booked flights for our family to New Mexico for the Christmas break. I had booked the flights for the Petitioner and our children to leave on December 16, 2010 and returning January 3, 2011 to maximize their holiday break. I had booked my flight to leave on December 22, 2010 and return on January 2, 2011, because I had to work. After the Petitioner told me that she wanted a divorce, I was distraught, and changed my flight to go to New Mexico with my family.
During the same time, the Petitioner concluded that her plan to move herself and our children in with her “friend” during the holiday break was logistically impossible, she still made plans to spend time with her “friend”. When I walked in the house on December 15, 2010, the Petitioner met me at the door, during our conversation, she nonchalantly stated that she would be spending December 19 thru December 22, 2010 with her “friend” at a Hotel and Casino in Albuquerque. It was so shocking, that I didn’t know what to say. The next day I wrote the Petitioner a letter to please reconsider her decision as we were still living in the same residence. Apparently the Petitioner came to a bit of reality as she had already told her “friend” that it was not a good idea. As I was not originally scheduled to be in New Mexico during that time, I do not know what the Petitioner’s plans were for caring for our children nor did she ever inform me of them.
When we arrived in New Mexico, our children were in my care from December 16, 2010 to December 22, 2010 as the Petitioner visited with her friends and family and still stayed at the Hotel and Casino as she had previously planned. On December 22, 2010 I took our children to spend time with the Petitioner. Our children stayed in her care until December 24, 2010 when I returned to pick the Petitioner and our children up as we spent Christmas Eve together as a family. The Petitioner left late that night as our children remained with me. The following Christmas morning, our children and I went to spend the day together as a family with the Petitioner. They remained in her care until December 28, 2010 when she returned to Albuquerque to spend more time with her friends and family. Our children were in my care from December 28, 2011 thru January 1, 2011 when the Petitioner spent the night with us, as a memorial service was being held the following day for my father. I flew back to San Francisco on January 2, 2011 and the Petitioner and our children flew back the following day.
During our stay in New Mexico, our children were in my care for 11 days, they were in the care of the Petitioner for 6 days, and both of our care for 1 day. Our children were obviously in both of our care during the exchanges and parts of the days that we spent together as a family. The Petitioner was away from the children for the New Year’s celebration as she spent it with her family.
As I do not know what the outcome of our hearing will be, I have already purchased my airfare to New Mexico to be with our children on their first day of school. S5 begins kindergarten and it is paramount for me to be there during this once in a lifetime occurrence. Not minimizing the importance of my support for D8, as I love them equally. I have also purchased Webcams the day our children traveled to New Mexico for both the Petitioner and I, so I will have the ability to interact with our children by video.
I find it interesting that the Petitioner questions my dedication to our children, however she moved away 3 weeks before S’s 5th birthday, 2 months before D’s 8th birthday, also missing Easter and Mother’s Day without making a return trip. I do not understand what her rush was to begin a new life. She cannot use the excuse that she was caring for her mother. If she was able to make a trip to Washington DC and another trip to Dallas for work during the time her mother was hospitalized, there is no reason she could not make it out here at least once. She was gone for a total of __ months without making any effort to physically spend time with our children. Meanwhile, I was the sole parent and caregiver during that same time providing a safe and stable environment during this difficult time. In paragraph 28, the Petitioner states, “I hope the Court will see through the Respondent’s false allegations about my character as a wife and mother”. These are not allegations. They are simply facts. The words and the actions of the Petitioner clearly do not align.
I agree with everything that the Petitioner states in paragraph 12. Furthermore, the Petitioner’s mother also continued living with us during this time and did not move until March 25, 2011. In paragraph 9, the Petitioner states, “I told him I didn’t care about the money;” In late January 2011, the Petitioner went to Las Vegas, NV on a trip that was completely paid for by me, with the exception of her stay at X Resort and Casino. Before the trip, the Petitioner asked me if she could buy herself a new pair of shoes, I agreed that she could. She returned with 2 pair of shoes and 1 pair of boots, spending $297.85 at Macy’s and $36.52 at New York and Company. I allowed the Petitioner to take advantage of me as I ignorantly had hoped that she would reconsider her decision.
During the Petitioner’s trip to Las Vegas, I received a call from one of her family members asking me if I knew where she was staying. I had been informed by the Petitioner that she was staying with her sister. However, I was told by the caller that she was staying at X Hotel and Casino. When I received this call, I was in the middle of the San Francisco Zoo with our children. To be called by the Petitioner, “virtually an absent and non-participating husband and father” while she exhibits this type of behavior and our children are with me in the middle of the San Francisco Zoo, is downright repulsive and insulting. In paragraph 15, the Petitioner states “In other words, we would have a solid family support system for our children there.” It is apparent to me that the Petitioner would need a solid family support system to continue living the lifestyle she has become accustomed to. However, no amount of extended family and friends can replace what I bring to the table as a parent to D8 and S5. I too agree that our child need a solid family support system and stability due to their young ages. That system is with me who can and has shown the ability to give them a stable and loving home. My children are my first priority and I have and will continue to demonstrate that effort.
Clearly, the best case scenario for the well-being of our children would have been to avoid this court. My aim was to keep the family stable by having the Petitioner and I to seek marriage counseling to explore all options to keep the family together. The Petitioner refused those efforts. The Petitioner had already emotionally checked out of our marriage and refused any such efforts. In January 2011, I went to the extent of calling the office of Michele Wiener-Davis, M.S.W. in Boulder, Colorado to schedule a 2-day intensive session with her personally that was going to be expensive to me. I felt that it would be worth every penny in an attempt to keep our family unit intact. When I asked the Petitioner if she would be interested in traveling with me to Colorado at my expense, her response was, “if it is to save our marriage, the answer is no”. I did the next best thing, I purchased 6 sessions with a divorce coach from the Divorce Busting center. While the Petitioner ultimately used one of my sessions, however it was a waste as she had no such interest in try to reconcile.
In response to paragraph 26, there was nothing false about the statements in the ex parte that was granted on June 22, 2011. If not including the unsigned “express agreement” was interpreted by the court as deceitful, it certainly was not intentional. Furthermore, if the Petitioner and her attorney are going to make allegations that we obtained custody of our children based on “false statements”, they best be prepared to provide the court with supporting evidence proving otherwise. Every statement that has been included in my case by me and my attorney has been completely truthful. We have not provided the court with any half-truths slanted in my favor or completely dishonest statements altogether.
Continuing on paragraph 26, the Petitioner states, “Our children have been looking forward to coming to be with me and they don’t understand why they can’t come live with me in New Mexico when this is what Respondent and I agreed to.” Of course they were looking forward to moving to New Mexico to be with Petitioner. They had not seen her since she moved away on March 25, 2011. Additionally the Petitioner built up their excitement with promises of bunk-beds, telling them about the New Mexico State Fair and the International Balloon Fiesta. They are young children. They do not know any better. Just because they were excited, does not mean that it is in their best interest to live with the Petitioner in New Mexico.
In paragraph 27, the Petitioner states, “Respondent knows that in 2007 I quit my job of 12 years at the X because so that I could have better balance family commitments.” I supported the Petitioner as I felt it was in the best interest of our family. I have always been supportive of the Petitioner. When she wanted to be a stay at home mother when we moved to the Bay Area, I was able to make it happen. Again, I felt it was in the best interest of our children. I have a track record of making things happen for my family. After having so much financially difficulty in 2009 as a family, I was able to obtain employment in 5 weeks after losing my job in a downed economy. Our children had a great Christmas that year because of the efforts on my part and my eagerness to ensure that their emotional and physical needs were met. Again, that was my top priority.
In paragraph 28, the Petitioner states, “I took a Florida trip in 2009 for 4 days to see my two best friends. Respondent even agreed that I could go there by myself.” In paragraph 3, the Petitioner states, “We only moved to San Francisco after we started to experience some very difficult financial circumstances.” I did not agree with the Petitioner as she states in her declaration. We were having financial difficulties during that time as she states in paragraph 3, trying to make ends meet. Not only did she have to pay for her airfare, she stayed with her friends at the X Resort and accrued over an additional $400 of expenses that we did not have.
Earlier that month for Cinco De May, the Petitioner was celebrating with some friends and family at a local Las Vegas establishment, while I was at a baseball game with our S5 and the Petitioner’s mother was at a school event with our D8. While I was at the game, I received a call from her Aunt asking me if I had heard from the Petitioner. I had not. Her Aunt had called me concerned for her as the Petitioner was extremely intoxicated. Eventually her Aunt did find her and gave her a ride home. The next day when the Petitioner, me and our children returned to retrieve my vehicle, it had a parking boot on it. I was upset, so I took our children to a nearby restaurant while the Petitioner dealt with the boot removal. The boot did get removed after she paid $200 that could have been used elsewhere.
It was during this time, that I, myself had considered divorcing the Petitioner as her “all about me attitude” and selfishness was wearing on me. After doing some research on the negative affects a divorce would have on our children, I knew that it was not an option for me. That thought did not cross my mind again. ( I might consider removing)
The Petitioner portrays me as being uncompassionate towards her mother. As demonstrated I personally moved her belongings to San Francisco. After Petitioner told me she wanted a divorce, her mother continued to live in my residence at no cost to her for nearly 4 additional months without so much as a request by me to the Petitioner, asking her mother to move out. One would think that the Petitioner’s mother would have concluded that it was not a coincidence that our thirteen and a half year marriage was coming to an end while living with us. The Petitioner’s mother still showed no eagerness in removing herself from the equation. She put more effort in one single day looking for housing in New Mexico as the time came closer for her and the Petitioner to move at the end of March, than she put into seeking employment from August 5, 2010 to November 29, 2010.
All the way up until the Petitioner’s mother moved in with us, I have a history of being a great son-in-law to her. As with all the supporting documentation included with this filing, it can also be proven. However, when I feel as though someone is taking away from my family, I take exception to that. My compassion has its limits. My family comes first.
I fear now that our children are in the care of the Petitioner, that she will not continue attending church with them. I feel that is of the utmost importance for them to continue practicing their faith for their spiritual growth.
I take my devotion and responsibilities as a father to Kylie and Darien very seriously. I cannot stand on the sidelines as the Petitioner states in paragraph 10, “The breaking point for me came when Respondent asked me “when is your Mom getting a job?” Kylie and Darien deserve better than that. If that is all it takes for the Petitioner to get to a breaking point, I agree, it is clear that there are irreconcilable differences between us.
It was heartbreaking to see the hurt and pain on D8’s face as she cried and was distraught the night before leaving as I got her and her brother ready to travel to New Mexico. It was worse the next morning while driving them to the airport and later watching them make their way onto their plane. (NOTE: S5 is obviously too young to understand the consequences of the Petitioners choices and actions.) I expect that Petitioner hurt me and attempt defame my character all she feels justified in doing so, however when it comes to causing hurt to our children, I will not just roll over and allow Petitioner continually mislead the court with a declaration filled with FALSE STATEMENTS , ALLEGATIONS AND CONTRADICTIONS.
The efforts I have gone to in the short amount of time to prepare for the August 2nd hearing, is another example of the lengths I will go to for the well being of our children as their father to provide them a safe and stable home.
It is evident that it is best to return our children to California, their home state, to be in my care as their primary parent. I will continue to be to provide the proper help they need to heal from this life altering event brought onto our family by the actions and decisions of the Petitioner.
I look forward to closing this chapter of my life and putting my complete focus on caring for our children.
LITB
Patience is bitter, but its fruit is sweet. --Jean Jacques Rousseau.
