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Never married father considering separating from mother, wants to know about custody of young child

Your Question:
I have lived wth my sons mother for seven years. We are not nor will ever be married. She steadfastly refuses to look for employment, I have been the sole support for my family for 5 years. She is now constantly threatening me with leaving with my son. In the last 2 years she has been arrested for gross battery and OWI. Currently, she has a revoked D/L, being that I work 50 hours a week more than an hour from my house do I have any shot at getting custody of my son who will soon be 4 years old ? She has no means of support or any assests, everything is in my name. PLEASE HELP

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My Answer:

Thanks for writing.

It's important for you to plan how you're going to approach your situation, prior to separating. I strongly suggest that you get the book, "Win Your Child Custody War" that I describe on my Strongly Recommended page.

Here are a few things that are significant in your case (in terms of child custody):

  • You admit that the mother has been the primary parent to stay home with the child. In child custody rulings, judges don't like to disrupt the status quo. So, barring any strong evidence, a judge is most likely to keep the child primarily in the mother's care upon separation.

  • You work 50 hours a week. You are not around to care for the child much. Further, your actions DEMONSTRATE that you think the mother is an adequate caretaker, else you have to admit that you leave your child alone with a dangerous person.

  • You were never married. You have no legal rights until a court finds you to be the father and makes a ruling on custody and a parenting plan (i.e., visitation).

I'm not claiming that the above is fair. If a parent is completely lazy and refuses to work, while the other parent busts his behind to bring in enough money to support the home, a court will say, "Well, she's the caretaker, he's the breadwinner, and we'll largely keep it that way upon separation."

That's just the way it works.

For you to have a shot at getting custody, you need to change your life around a little bit to spend more time with your child, encourage mom to go out of the house (for anything-- partying, shopping, vacation, employment). Document everything (ideally with software like OPTIMAL that I describe on that link above). If you can adjust it a bit for many months, where your documentation shows how much she was out of the house, how much you were in the house, that's going to potentially help you. A judge will say, "Okay, it's clear that this guy was highly involved with the child on a daily basis."

You haven't outlined anything strong enough to remove the child from the mother. There are a few things that concern judges-- violence, drug addiction, and alcohol addiction. I'm not suggesting that you should ever lie about anything. But if the mother has issues with any of these things, build evidence on it.

When you're ready (e.g., in 4-6 months), you'd file a paternity action, requesting a parenting plan of XYZ, and a custody ruling of ABC. Having a family law attorney at that first hearing will be hugely advantageous.

You'll immediately start paying child support, once you separate. Eventually, if the mother still refuses to work, you can ask the court to impute her income to her earning capacity (i.e., at least minimum wage for 40 hours weekly, unless you can show that it should be more).

But the biggest thing is that you have a loser of a case right now, if you want significant time with your child and the mother doesn't agree. You need to tackle and change that, pronto, well before you separate.


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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