Hello, all!

Need help/assistance -- probably not in the right forum, but where to go with this?

Backstory:

My brother is separated from his wife of 4 years...has a 3 year old daughter.

They have a mediator-written custody agreement, heavily skewed toward mother, little father representation.

They have been separated for almost 2 years -- divorce should be final @ October. Their house is being short-saled (ex walked away from house).

Brother called ex about HIS new residence...just to be informed by his STBX that SHE is moving in with another man.

My brother is very distraught, freaking out, and I believe there must be SOMETHING legally that can be done to protect his daughter and himself, but I don't know what, or what course of action to advise.

Any ideas?

This will depend on local law, but some (most) places have what is called "no paramour clause" during divorce pending and sometimes afterwards. This can vary by wording but basically it means no live-ins without marriage and/or no sleepovers. Does he have representation?

No.

He recently showed me the custody agreement, written up by a court mediator.

It's only 2 pages, very vague, no details, everything is crafted around his STBXW's work schedule, residence, etc...he's left with scraps. He showed up solo thinking it was going to be an "amiable" meeting. His STBXW showed up with some lawyers.

He was planning, at the final divorce settlement in October, to ask to modify the agreement to include specifics -- visitation schedule, and education, communication, and health related issues.

This, however, opens the door for him to revisit the agreement due to a drastic change in the circumstances, no?

A family member was helping a bit -- with my brother having limited means, cousin lawyer only helped to a point.

At this point, maybe my brother should just contact LegalAid for free representation??? Or, retain a lawyer on an intallment plan?

I just don't know what legal action he needs to be taking NOW to protect his child and himself.

This just doesn't seem right. Is there no legal recourse?

He will probably need to find a means to retain a lawyer. There is legal recourse but unfortunately money talks. Are there any father's rights groups nearby that he can contact?

If she has lawyers and he does not, then he's going to be on the losing side of this (no matter what is in the child's best interests unfortunately).

Alis,

That's my fear.

It seems like his options are to get our cousin working for him, for REAL this time,

OR

Contact a local bar association or father's rights group for a recommendation,

or

is LegalAid an option for pro bono work?

I want to be able to help him not get bulldozed here, and that the child is protected.

thank you.

Does the affair partner have a criminal record?

Don't know, but will have him look into it.

What state is your brother in?

How long has this separation agreement be in effect? Did he voluntarilty sign the custody agreement or is this a court order?

Pennsylvania.

The agreement has been in effect since April 2012.

He voluntarily signed it -- without his lawyer, although STBX did have one. It was a 3-page generic, vague document created by a mediator (looks like I could've gotten it at Staples in those ready-made packs).

We spoke last night about him getting more assertive with his efforts, and in requiring his lawyer to fight for him and draft a better custody agreement.

Also, his STBX just informed him she is moving in with her boyfriend at the end of the summer. This qualifies as a "change in circumstance" and gives my brother the opportunity to modify the agreement at this point, no?

Thanks!

PA does not have "legal separation" so I would strongly advise your brother to contact an attorney NOW before he keeps screwing himself over. Don't wait until October. His signature was notarized? He may have to deal with civil court vs family court depending on the language of this agreement.

Court Modification
Whether a family division court in Pennsylvania can modify a marriage-settlement agreement depends on whether the agreement is incorporated into the final divorce decree. If the marriage-settlement agreement is incorporated into the divorce decree, a spouse may petition a family division court judge to modify any aspect of the agreement if there is a "change in circumstances." If the agreement is not incorporated, a spouse may only petition the family division court for modification if there is an "unforeseen and unanticipated change in circumstances" -- a much higher burden. A family division court maintains discretion to modify the marriage-settlement agreement's terms pertaining to child custody if a modification would be in the children's best interest.

PA is a fault state. Since there is no such thing as legal separation, his stbx is commiting adultery. I don't know if your brother is dating too but he may want to ask the attorney how this affects his case.

STBX upped and left October of 2011; this October 2013 will be 2 years of not cohabitating, which apparently means something legal in PA?

I urged him to retain STRONG legal counsel THIS WEEK and get more assertive with this. I am hoping our cousin will 'man up' with this...if not, bro is looking at contacting LegalAid society for legal help/representation.

To my dismay, my brother, I think, is "seeing" someone....nothing too serious.(and yes, he understands my position that UNTIL you are divorced, you are MARRIED).

The STBX filed for divorce first..both have little $. So, my bro, thinking this was going to be a "friendly" discussion, showed up solo at a meeting where a court mediator presented and had them both sign a custody agreement. I'll check if it was notarized)

I'm not sure what the thinking was, but the agreement spells out VERY little -- no specifics. The most 'specific' language is: "father gets child every other weekend and whenever else mother is not working."

No clauses on education or healthcare or a set visitation schedule ro taxation or holidays...nothing.

I'm trying to figure out what he nees to do NOW and in prep for October.

It sounds like he'll need a new custody agreement drafted, and that gets presented by his lawyer, and rolled into, the final divorce decree at October's court date? Can a modification be done at that same final decree proceeding, or does that get introduced at a prior date?

I cannot thank you enough...your expertise is astonishing!

Well,

Cousin/lawyer finally got back to my bro and will continue representation.

After much research, he cobbled together a sample custody agreement, a much stronger one and detailed one, and is meeting with his lawyer next week.

His plan is to present this sample and request "this is what i want in the new custody agreement". A far cry from the 3-page Cliffs Notes version he's operating under now. It is more than time for him to get the lawyer working for HIM.

(Soon to be ex just browbeat him with it last week after my bro requested more visitation time and more consistent time...ex responded "I don't want to keep reminding you every time you ask: the agreement reads father will have visitation 2 weekends per months and whenever the mother is not in work. That means you have visitation around MY schedule. Stop asking and start reading the agreement).

Anyway, my brother is going to his lawyer with these 3 specific requests for his services:

1. A marriage/settle agreement (incorporated into the divorce decree)
2. The divorce decree itself.
3. The original custody agreement modified,or tossed out altogether.After living with the court drafted version for over a year now,the mediator's custody agreement is not satisfactory (I have a draft of a custody agreement ready for you that includes what i like to have incorporated in a new, acceptable agreement)

Thanks.