Question: My wife and I divorced three years ago. The court gave her custody of our son, who was then two years old, and allowed me visits. I pay child support. My wife was hanging out with a bad crowd and was leaving our son alone. When she and her boyfriend were arrested for possessing and using cocaine, I went back to court and was given custody. While she was in jail, she did not get any visitation because the judge did not want a three-year-old being taken to a prison.

When she was released, she went back to court to regain custody because she had gotten married( to an ex-convict she met at some counseling program). She told another judge that she had straightened out. My lawyer presented my case and the judge knew everything that had gone on, and had her new husband’s record. The judge gave my ex supervised visits twice a week for four hours each time for three months, after which she will be able to have my son – who is now five years old -- for two overnights each month in the apartment she shares with her criminal husband.

My lawyer and I were both flabbergasted that a judge would automatically change supervised visits to unsupervised visits, not knowing what the future holds or if my ex-wife is really clean. (Neither she nor her husband works). According to the judge, my ex and I are supposed to come up with a neutral third person to supervise her, but she and I don’t talk and I don’t know anyone who would get in the middle, so she has chosen one of her girlfriends. I am not allowed to be anywhere near the place where the supervised visits take place.

I am not rich, but I feel that my son has been shafted. He has done very well until now, but I am afraid that this situation will result in him needing therapy. My lawyer says that we could appeal, but the cost would be prohibitive, and I might not win. How can I not win something as egregious as this?

Answer: Assuming the facts are as you state them, we agree that your son got shafted. If the judge will not reconsider his ruling, which is the first thing we think your lawyer should ask the judge to do, then an appeal should be in the cards given what appears to be a situation that cries for rectification.

The general rule is that custody and visitation are within the discretion of the judge who hears the case based upon the evidence, and a judge’s rulings won’t be reversed by a higher court unless the judge abused his good judgment or is plainly in error. Here, we believe both are the case.

First, we believe that the judge should have appointed a guardian ad litem for your son so he could have his own independent representation in this fiasco. Second, it is unfathomable to think that anyone could expect you and your ex-wife to agree upon a “neutral” third party to supervise the visitation during the first three months. Third, we believe that by automatically allowing your ex-wife to convert supervised visits into unsupervised overnight visitation based upon the mere passage of time, without setting parameters for improvement or conditions of behavior, the judge clearly committed error.

Based on our research, we have found that automatic changes of custody, visitation, and support payments are unacceptable because they are based on conjecture of what will be in a child’s best interests at a future date.

The procedure used to change custody, visitation, or support is based on a substantial change of conditions or circumstances in the future. At a minimum, the judge should have appointed a guardian ad litem, set the conditions of the supervised visitation for a specific time, and then required everyone to come back into court to update him about the circumstances then existing. Since there was no evidence before the judge to warrant a modification three months out, and no basis to determine future events, you should follow your lawyer’s advice and vigorously oppose this order.