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Never married father of infant trying to get joint custody across hundreds of miles

Your Question:
First off, I appreciate any info or opinion you could provide. Here are the facts. I am the putative father of an 8 month old boy. I was involved with my son's mother for a short time before she became pregnant. She is still married, but separated shortly before we started seeing each other. I provided her financial and moral support throught he entire pregnancy. I informed her that I did not want to maintain a romantic relationship a couple months prior to our son's birth. We both lived in VA, separately, at the time. She suddenly moved back to MD, 4 hrs. away, in her 9th month of pregnancy to have the baby. Keep in mind that all her doctors were here and she did not have a doctor in MD. I attending every doctor's appt. during her pregnancy before her move. Since my son was born, she returned to VA only to put in her 2 weeks notice and then moved to FL, over 14 hrs. away. I filed for custody shortly after her move to FL. The court in VA awarded us joint legal but primary physical to her. I fly to FL 2 times every 5 week period and have my son here in VA 2 out of ever 7 weeks. I incur all travel costs plus I sent $700 per month to her for his care (there is no child support order in effect). her behavior is as irratic as always. We have a return date to modify the child custody order in Dec. Do I stand a chance at joint physical custody? Does the fact that she is still married reflect poorly on her, in addition to her frequent moves. She is a good mother, but has a terrible relationship with me and does not really want me involved in my son's life.

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My Answer:

I asked you a number of further questions that you answered (not posted), so some of those details will be woven into my response.

But first, I need to again reiterate how incorrect is a poorly held concept about being "a good parent, except..." when a healthy, stable parent is denied access to one's child.

A "good" parent will never deny a child the ability to freely love and bond with the other parent. It a moral crime of immeasurable proportion to interfere with a child's natural instinct to cherish and rely on strong ties to each parent.

Was that clear enough? I even made it bold, because I can't rightly try to slap out of you the "She's a good mother, but..."

Okay, so your career is both good and bad. You're an attorney in a field unrelated to family law.

This means you have the tools to write pleadings, draft points & authorities, propound discovery, and argue your case. That's good.

The bad comes into play because you're predisposed to think that all you have to do is argue a strong case, and you'll prevail. Unfortunately, family law is an area where the judge has wide discretion make a ruling, so long as the judge somehow connects it to "best interest of the child."

It's critical that you learn what generally matters in child custody cases and learn more about the issues that may most influence your judge. You can sit in his/her courtroom and observe rulings. You may want to consult with an experienced, local family law attorney and ask if this judge has any hot buttons.

You then can craft your pleadings and arguments, tailored to what you've observed most impresses or annoys a judge. If you hear the judge sternly lecture a parent on some seemingly minor (or major) behavior, and if your ex does the same behavior, you'll want to hammer that in your pleadings.

I strongly recommend that you look into the book "Child Custody A to Z" by Guy White. It's an excellent book to shift your mind into the right arena, so you put effort into what matters. I describe it on my Recommended Books page.

Okay, on to some specifics:

  • The most "erratic" behavior you attributed to her is her frequent moves. The kid is only 8 months old, and she's moved once during his life. That isn't frequent enough for a judge to care. The mother would simply respond, "Yes, I moved into a better home in which I could raise a child", and then you look like an idiot. If she moves twice more in the next 6 months, you start to have an argument, but it's still not going to be much of an issue until the child gets old enough to be aware of his environment and needs stability in it.

  • You hope to draw attention to her character by proving she is still "married" but doesn't live with her husband and perhaps boinks around a bit. Again, why would this matter to a judge who is ONLY looking at things that have an impact on the child? It doesn't, and you'll look goofy trying to hammer irrelevant points. Drop it.

  • She had her baby out-of-state and away from the doctors she had been seeing. So? The baby was born healthy, so where's the damage. It's irrelevant. Drop it.

  • You were supportive during the pregnancy. So? You'll have a nice reward waiting when you see St. Peter, but until then, it's irrelevant. The court comes into play when a baby is BORN and a custody matter is filed. Drop it.

  • She moved 14 hours away (assuming by car). This is relevant as to a ruling about a parenting schedule, but not necessarily a negative reflection on her. It's impossible to have joint physical custody when 14 hours exists between the parents. The kid is going to go back and forth every week? Nope. The kid is going to spend 6 months with Dad, then six months with Mom? Nope-- that's a horrible parenting plan for an infant. Joint physical custody happens when both parents are taking a significant part in raising the child (i.e., 50/50, 40/60, something close to that). I've never heard of a long-distance joint physical custody ruling, unless it's with much older kids who experienced a background in joint custody when their parents were closer. Maybe it's possible, but I've never heard of it.

  • One of the strongest things going for you is that you take care of your infant for 2 weeks (presumably consecutive) out of every 7 weeks. This means that you are trusted to properly take care of your child. Most noncustodial parents never get 2 solid weeks, roughly six times a year. If the mother agreed to it, it indicates her belief that the child is completely safe in your care. If the court ruled on it, you argue that a prior ruling demonstrated your ability to care for this child for extended periods of time. Of everything you wrote, this part of your parenting plan is pretty darn relevant. Exploit it. Hammer it. You are not marginalized. You care for an infant 14 days in a row-- diapers, feedings, soothing, etc. You are capable.

So, where does all that leave you?

You need to build a case. Get that book. Follow its suggestions. Dig up dirt on the mother that is relevant to parenting. Spend a thousand bucks to hire a private investigator. You never know what the PI will observe.

You have several months before you return to court, and you can use that time building your case.

Also, give serious thought to moving near where she lives in Florida. This is an examination of priorities. Want to be a Dad? You got to go to the child. It's not fair, but it's reality. If you move, you immediately get rid of the transportation costs too.

If you move to Florida, near where the mother lives, Florida will likely be your jurisdiction. Look into child support laws in VA and FL. They may be comparable, or one may be a bit better for you. Go to message boards that I list on my Links page and try to get a sense of whether VA or FL is more progressive when it comes to joint custody.

Also, if you move to Florida, and if she moves again, I think you'd have a much stronger case to show her intent to keep you away from the child. A judge won't like that she moved 14 hours away, you moved ONLY to be a father to this kid, and then she moved far away again.

Finally, if you move to Florida, you go into court saying, "Look, we live 2 miles apart. There is no good reason this child shouldn't spend much time with each parent."

With regards to child support, be sure to write on every check, "Child support for CHILD's NAME". She may later argue that you gave her "gifts", but you never paid a dime in child support. A court may believe her... awarding her thousands in child support arrears. Cover your butt on this one, given that you have no orders for support yet. Many parents have gotten screwed with such a situation.

Read posts on this site, to get a sense of how it really works in family law. Read that book I suggested. Post on message boards.

You've got three months to prepare. What happens in December is likely going to set the scene for the long-term parenting plan of this child.

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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