Custody Issues: 3 year old caught in the middle

[inquiring_mother]

My fiancee is the non-custodial parent of his 3 year old son, and although him and his ex-wife have a parenting plan, he basically lives with us. The custodial parent has two other children (whom she never has with her as well-drops them off with their grandparents or other friends). We want him to be with us, as our home enviornment is more stable and provides a better atmosphere. We were living in AL, and his ex-wife and child is MS, but we recently moved to FL in July. Since the beginning of 2010, she has only had her son about 4 months (total) out of the year. We have him from Feb/March-July/August, then she gets him for about a month of two and we get him back again shortly after before christmas. Then she gets him again right after xmas but only keeps him until about Feb again. This child is suffering greatly from the lack of consistency. When he's with us he hits all of his developmental milestones and fairs incredibly well. He's counting and learning alphabets and number, etc. When he goes back home he reverts to acting like a baby (mimicing his baby brother) and also exhibiting agressive behavior and throwing tantrums, as he communicates without all of the aggression when he's with us. He was nearly potty trained before this last time he left in July and has only been gone for a little over a month and now that we have him back he has completely reverted back to pull-ups. We have put forth so much effort into working with this child, and everytime he goes back home he takes two steps back. The mother doesn't have the financial means or the time to take care of this child, let alone the other two she has, but they have different fathers so our only concern is the 3 year old. He will start school next year and all of this back and forth will be horrible for him. Certain family members have also pointed out that he doesn't always get adequate meals, but they won't come forward in court or even help for fear that she won't let them see the child anymore. She has everyone (him and the rest of his family) pretty much in limbo because if they make her mad, everyone's afraid that she'll no longer let the child be around them) It seems as though she never lets him stay a full 6 months with us, almost strategically, so that he can't file for custody. Please help. this child is suffering! Do we have a chance in obtaining custody?

[Attorney Cheri Hobbs]

Once your finance has been a resident of Florida for 6 months he can file a Petition to Domesticate the foreign court order and a Supplemental Petition to Modify Time Sharing. If he does not want to wait that long he can proceed in the state where the divorce was finalized/where the final judgment is. The substantial change in circumstance needs to be something that was not anticipated during the divorce (i.e., the child is one year older now) and the court will look at what is in the child's best interest. It is likely that when he files if the child is with Mom then she might not let him have the child for his time sharing. But if that violates the parenting plan then he will also have a contempt/enforcement issue.