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Father has been doing 50/50 for a year; he thinks mother is a bit unstable. Chance of father getting custody?

Your Question:
I have been divorced almost 1yr, my ex and me have a Marital Settlement Agreement I keep our 4yr old daughter on the days she works and she keeps her on her days off, which comes out to 50/50 on time spent with our daughter. The only reason I did this was due to a Domestic Violence charge that was not true, even in the police report it says I never touched herthat I snatched a phone out of her hand and it cut her, the judge himself laughed at the charge.

My ex suffers with a eating disorder and has for 12yrs or more, she is on 60mg of prozac a day (does not take all the time) I know because she had to live with me for 2 weeks when she had no place to stay and I counted her meds everyday, she suffers from depression, has been in and out of inpatient treatment centers, takes daughter to daycare on her days off, has had 4 men live with her in the past yr and has now got engaged to a guy she met on the internet 3 weeks ago and plans on moving away, this guys job makes him move once a year or more. I have a steady job that I work 7am till 3pm everyday and I am off every weekend. She always ask me to keep our daughter on her days, I have been keeping a log of all the time I have with her and anything crazy she tells me on the phone. Do I have a chance at being the primary?

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My Answer:

Thanks for writing.

In answering your question, "Do you have a chance at becoming primary parent?", the most important thing to always remember is to frame all arguments in the best interest of the child. The goal is NOT to point out all the flaws of the other parent, though that may be a by-product of discussing the child's best interest.

I'll assume that all that you say is true, and you've left out no relevant information:

  • Past fake domestic violence charge is irrelevant. Happens all the time in family court.

  • Mom has an eating disorder. My question back is... even if you can prove this in court, how is it relevant to your child's welfare? What if mom is one of those private bathroom barfers (i.e., I'm not quite knowledged on exact terminology) and your daughter is never exposed to it? You need to take that information and solidly show the damage it causes child, else it's not relevant.

  • Mom is on Prozac. Again, so what? Millions of people take prozac. At this point, it may be even more popular than Skittles candy. You have to frame the mental health issues in terms of child's welfare. If she's on the Frequent Member plan at the local mental health facility, and has a room reserved for herself four days/week, this is a serious issue... not because she is depressed, but because she isn't reliably available for the child. If she was last in a mental health hospital 3 years ago and stayed 1 week before receiving her on-going outpatient treatment that has stabilized her, then your argument isn't relevant.

  • Mom takes daughter to daycare. Millions of parents do this. It would be irresponsible for mom to leave daughter alone at home, right? Do you or I think it is ideal parenting? Probably not. But it's reality that a ton of people need help via daycare in order to make a living to support their children. If the daycare facility is run by some guy who also operates a chicken farm and keeps the kids in chicken cages all day long, I think you've got a good argument. Else, the court won't care.

  • Mom has had four men live with her in past year. Okay, now we're on to something! If you can prove this through solid evidence, it's reasonable to argue that having boyfriends going through a revolving door (and exposing daughter to it-- this is the key part) is not in a child's best interest. It's chaotic for a child. This is relevant, but it's not a deal-maker in itself.

  • Mom was homeless for a while. Well... this could have been a deal-maker for you to get new orders for child custody, but you provided her with a roof. You'll get rewarded by St. Peter in many decades for doing the right thing, but not by a judge today. You missed the opportunity.

  • Mom is getting married to someone she just met. If the new guy is bad for your daughter, it's relevant. Otherwise, it's completely irrelevant.

  • You care for daughter during mom's custodial time. This is relevant. If you've been caring for daughter for 80% of the time during the past year, you can go back to modify child custody to reflect de facto (i.e., actual) custody arrangements that have been in place for 6+ months. You need evidence, though, to show this. Your logs, witnesses, mom's admission, preschool attendance records (i.e., who brings daughter, who picks up), etc.

  • Crazy things mom says on the phone. We all hear crazy things from the other parent. If the crazy things are about threat of bodily harm to anyone, very odd bedroom things while daughter is in the home, new illicit drug use, or drunk driving, the court will find it relevant. Else, probably not.

  • Mom is planning on moving away. If mom DOES move, then obviously your current arrangement won't work anymore. If she moves, and if everything you outline is true, I think you'd have a good shot at getting majority timeshare with your daughter. You seem much more stable than mom, and if you can prove you've been doing far more than 50% of the caretaking during past year, you've got a very good case.

As I often do with some parents, I recommend that you invest seventy bucks into the only child custody information and strategy book that you'll ever need... "Win Your Child Custody War" by Hardwick. It was a great help to me. There's a link to it on my Resources page. I recommend this to you because it doesn't sound like you've got a very solid grasp on what matters to a court in a child custody ruling (not an insult-- we all start that way until we gain more knowledge and experience in dealing with the courts). That book will outline what is important and what's not... and it'll help you understand how to craft all your arguments, and how to build your case.

It sounds very timely that you educate yourself and prepare to build your case, because you're saying that mom will be moving sometime in the near future. At that point, you two will have to create a modified parenting plan; and if you can't negotiate it together, you'll end up in court. If you're preparing now for a worst case scenario, what you believe is best for your daughter has a better shot at getting secured via court orders.

Please let me know how your situation progresses, and good luck.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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