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Father of baby was primary caretaker until mother got a restraining order against him

Your Question:
First I would just like to thank you for hosting such a wonderful website, finally some real help from people who know. My question is I am caught up in a battle of custody of my 1 year old son. His mother is petitioning to make it so I only get him for 1 day every two weeks, and I have been the one that has primarily taken care of him since his birth. She has now gotten a restraining order on me to keep me from showing up and trying to visit him. I have a court hearing on friday of this week. I dont have a log of time with my son but I have tons and tons of digital camera pictures of him taken by me at my house from the age of 3 months all the way to 1 year. If I take those with me to court will it help the Judge to see that I did have my son all the time?

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My Answer:

At this point in time, you've got an uphill battle due to the mother successfully getting a restraining order against you from seeing your child.

It's critical that you educate yourself ASAP on what could likely be a long process. The mother has won the first skirmish, and it sets her up to have an advantage at the next hearing later this week.

I don't think pictures are going to be too helpful in court. A picture is merely a moment in time, and a set of pictures can be crafted to tell any story desired. Even a parent who is only involved with a child for 30 minutes daily can generate a dozen pictures every day, showing themselves with the child.

What is going to be much more valuable for you on Friday is to get affadavits (i.e., sworn declarations) from objective witnesses who can testify that you have been the primary caretaker of this child.

A great witness would be a pediatrician. The pediatrician can write that he/she has seen mostly you bringing the baby into check-ups, and it has been mostly you who has called with questions.

Another good witness would be neighbors. A neighbor can testify that he/she has seen you every morning, afternoon, and evening with the baby.

An excellent witness would be someone from the mother's family who is willing to testify that you've been the primary caretaker. That may not be possible to get.

Your personal friends and family are not good witnesses. They're biased.

If possible, getting some sort of evidence of the mother's work schedule could help show that she couldn't have been caring for the child most of the day (or whatever else might show she is tied up for 10-12 hours daily).

Your goal on this Friday should be to bring enough solid evidence that it's clear and convincing that you at least have been extremely involved with this child, if not enough to show that you've been the primary parent.

If you don't have a log, it'd be good for you to estimate what days/hours the child has been in your care.

Your argument on Friday is that the status quo of this child's first year should not be disrupted until there is an evaluation to determine that it's not in the child's interest. Therefore, you want a temporary parenting plan ordered that restores the approximate schedule of caretaking between parents. Further, you argue that such orders are critical at this stage, in that the mother has all but eliminated your contact with the child, when you have established the primary parental bond.

If you have a judge like some of the better ones I've had, the judge will tell one or both parents that they're not going to like his/her orders, that the parents should go out into the hall and settle it. This often makes both parents nervous enough that something equitable can be reached in the hallway.

And come with a solid plan as to what that schedule should be. Look at my parenting plan section.

If you start getting hosed on Friday with orders making you the noncustodial parent, ask the judge if she/he would order a step-up plan for more time with you in six to twelve months, so the parties can avoid a return to court. The judge may find that reasonable.

Finally, get the restraining order removed, unless there is clear evidence that you're a danger to the mother or child.

It wouldn't hurt for you to have an attorney on Friday. This next hearing may set the stage for what the parenting plan will be for quite a while.

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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