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Never married custodial mother is up against alcoholic father with attorney

Your Question:
I filed for divorce back in April of 2006 after being fed up with my estranged husband and his lack of support for our two children, repeated infidelities, drug/alcohol use, and a whole lot of other negative things.

I filed not knowing exactly where he was at-- he was being sly about his whereabouts at one point. Other times he'd give a general location but never any details. Then, he just seemed to drop off the map for a bit.>BR?>BR? I had a default hearing in which, somehow, an attorney representing him was present (we are in different states). I didn't get to serve him divorce papers as I didn't know where to find him, therefore I had to run a legal ad in a paper for a certain amount of time as outlined by the courts.

Anyhow, his attorney is claiming that I've known where he's beenn all along and that I'm trying to fly under the radar with this divorce and just banish him from our lives.

They've also put a temporary motion that I do the traveling for him to visit his children. One motion states that I travel only 60 miles away (yet stay there for two days), or a bit over 500 miles away. And, he wants telephone communication with the kids three times a week (they don't talk yet). I don't have a telephone!

I am highly against all of this.

For one, he is an illegal alien. He does not have proper DHS authorisation to work in this country. He once had a green card with a previous wife, but when we were married, he was denied a new one and we never filed for it as he would never hold a steady job and we couldn't afford it.

Even when he could work, he chose not to, or couldn't keep the job. My parents took us in because we got evicted from our apartment and were pretty much homeless. He never worked after moving in with my parents, up until the time he decided to move elsewhere to try and find work (and eventually have us all go up there).

Right now, in the state the children and I reside in, it's a felony to be illegal and be within the boundaries of the state. So I'd assume that even coming here for court, he'd be in violation of the law.

So without this DHS authorisation/green card, how would he provide child support? Him being employed is a big law violation. I also see it as a potential flight risk-- whisking away the kids to his country of origin.

Also, he has three arrest warrants pertaining to extreme DUIs following him around-- two in the state I reside in and one in another. Part of the terms of the sentence he received with the last DUI was to attend intensive alcohol treatment, which he refused to do. Nor did he pay his fines (hence the warrant). I have court documentation of this.

Additionally, I have statements from past employers regarding failed drug tests, termination, etc. He abuses alcohol quite regularly, as well as cocaine... and I think supervised visitation isn't even a good option because his behaviour is so erratic. There were many times where he was high or drunk with his children present, and has started near-violent fights with me or other family members in front of them. The fact that he cannot work and therefore provide child support is another factor going against him.

He is claiming that i am shutting him out because I moved (I did, but cannot afford to have a telephone at this time), and that I cut off all communication. Indeed, there was a short period of time where I refused to talk to him. He came to visit the children once but didn't really pay them any mind, he kept pressing me to sort out his immigration issues. After he left, when he would call, he was always vulgar and threatening on the phone, so I stopped taking his calls. After a while, I had no idea where he was at. I had emailed him, but never heard back. I have kept in contact with his family-- messaging them every now and again, sending photos, etc. In fact, his mother asked me where he was at, as she hadn't heard from him in a few months and wanted to know... but I didn't know either.

Here is my question. He's trying to site alienation and so on. I don't want him around the children at all. Any time he is around me or my family, he starts these outrageous, violent arguments. He can't provide for the children. He hasn't been around in months and now wants to come around...
With his track record of substance abuse, abandonment, run-ins with the law, poor work history and immigration status, do you think they'll grant him any rights to the children?

The thing I'm worried about is he has an attorney. I cannot afford one (and legal aid in my state would provide one only if I had been battered or abused and had police documentation), and honestly, I don't want one. Again, I have concrete evidence of all of the things stated above (court documents, notarised documents, etc). He doesn't have anything on me at all. Even so... Do I even stand a chance representing myself against an attorney?

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My Answer:

Quite a story.

Recently, a few people have written to me inquiring as to whether a person's illegal status in the USA would influence a child custody outcome.

I don't comprehend how an illegal citizen could be okay to have as a sex partner, but not as a parent of one's child. And a judge won't understand that connection either. I suggest you drop any connection between citizenship status and parenting abilities-- it's a very weak argument when you have so much stronger stuff.

Here are some bulleted remarks as to how I think you craft your case:

  • He's an alcoholic with three DUI convictions. Show evidence of it and enter it correctly in court, and this is a huge blow to his position. The courts generally recognize that alcoholism is not good for kids.

  • He may flee with the kids to his country of origin, due to challenges in employment while undocumented in America. This is a fair point. So, ask for orders that the children are not to leave your state, unless by your written consent or further order of the court.

  • He wants phone access to the kids. This is reasonable, when they're two years of age and older. He shouldn't expect more than a 10 second conversation with a toddler, of course. Having phone access is not a license to verbally abuse you. If he can politely ask to speak to the kids, three times a week, that is quite reasonable. The court isn't going to accept that you can't be near a phone three days per week at specific times.

  • He has an attorney and you don't. If everything you've outlined is true, and if you don't have your own serious parenting issues, you have the much stronger case. However, an attorney is going to object anytime you fail to follow procedure in court. An attorney is going to move for things that you have no idea exist. An attorney is going to remain emotionally unattached, while you get increasingly emotionally frustrated. An attorney is going to argue his case in a way the court wants to hear it. You won't. For all these reasons, to ensure your strong position isn't defeated, you need an attorney. Borrow the money somehow, and ask the court to order the father to pay your attorney fees.

  • The court will order child support be paid. Don't worry about how it gets paid. If it doesn't get paid, that's the father's choice.

Based upon everything you've outlined, I think you should be asking for sole custody with supervised visitation involving a professional (i.e., a social worker) who can report to the court on the interactions between father and child. This would take place local (to you) and at the father's expense to arrange. If the court buys your story, the court may start with something like once weekly for four hours. It'd be up to the father to figure out travel and transportation. To be clear, you would not be present. Only the supervisor would be present, and that person would have authority to end any session early if need be.

Expect the court to give the father a chance to clean up and jump through hoops. After the court sees the father failing to do that, the court may take further action to restrict contact between father and kids.

Again, I want to emphasize that you need an attorney to make sure his attorney doesn't cream you. Find the money somehow-- borrow from people, go into debt, sell a car, etc. There are some moments in life when our kids need us to make immeasurable sacrifice. Retaining an attorney is one of those times for you-- because if you fail to win (assuming what you outlined is true) it is going to cause even more immense burden on your children.

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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