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Newly divorcing father has way too many worries about the future custody outcome

Your Question:
Hi Eric,

I wrote once before but was more of an emotional wreck than I am now. This entire process completely caught me off guard and still, today, has me reeling in many ways.

My wife of 10 years announced mid-way through a one week visit to her mother’s home 400 miles away in another state that she wanted a divorce and would not be returning with the kids.

I filed for divorce immediately to get to a hearing where I could ask a judge to return my kids back home. It took several weeks to get that date scheduled. I lined up witnesses and came to court prepared to deal with any possible issue she could raise, and present the best case I could. I was stunned when my attorney told me they were offering to share custody for the next 6 weeks to avoid two trials and defer the custody battle till the final divorce hearing. My attorney really pushed me to make the deal, even though I had serious concerns about the fact that this delay would give her more time to build a better case. I reluctantly agreed, but only to find out that they had a full sheet of terms which included paying her support for the two of the next six weeks she would have them with her. Again, after a lot of pressure from my attorney, I agreed.

We have depositions scheduled for next Friday and the final hearing on the 25th of July.

I’m really concerned that my attorney is not zealously representing my interests. I can’t afford to hire a new one at this point, so I am trying to help him by making my position clear, and providing him with as much information as possible. He continues to frustrate me a bit by being very non-committal about the chances for a positive outcome. I feel like this is a battle which needs a strategy, and he seems to feel like I should just tell him what I want and he’ll go ask the judge for me. He has a good reputation here and has been practicing here for a really long time.

I live in Tennessee, but have no family or really strong friends here. My wife and I led fairly private lives. On the other hand, my son is a Cub Scout, and I am a volunteer leader. They all have friends here, and have been baptized in the local catholic church where my wife and I just had our marriage blessed in April. I’ve worked independently from home as a freelance software developer for 5 years now. My wife and I shared household tasks equally, but the kids (and her) relied on me more for sensitive, emotional issues.

She took the kids to her Mother’s in Georgia. We used to live right next door to her Mother, so it is a familiar area to her and the kids. She kept them from me for three weeks, though I did get to talk to them every day.

In an effort to minimize the damage this whole thing does to my kids, I made an offer where we’d agree to shared custody and I’d move to Georgia. It included terms like that we both agree to not move more than 20 miles from each other to make getting the kids to school and other activities easier. She is refusing and wants something more like 70/30 and won’t agree to stay in the area (She has a boyfriend in a New-England state).

I don’t want an ugly trial. I want her and I to work out the details, and use the courts to formalize the agreement. I’ve been fair and willing to agree to just about any terms or conditions she wanted to ask for. She just refuses without being able to articulate a clear reason why. I don’t want to drag her through the mud, and I don’t want to do that to her parents either. On the other hand, I won’t accept anything less than 50/50 without fighting with everything I’ve got.

What should I do? Make my own decisions about what I want to ask for and just use my attorney to file the right papers? If I do that, can I depend on him to ask the right questions at trial? I’m pretty afraid of that approach. If I get too confrontational with him, I’m afraid he’ll tell me to go find a new lawyer.

What are my chances in court? (and yes, I have ordered the book!)

Thanks Eric!

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My Answer:

My oh my, you are spending so much emotional energy worrying about things that haven't even happened. Quit it, and quit making assumptions about the future. That's not good for anyone, it can make you sound like a kook, and it can hurt your case if you try to hammer on your predictions rather than on evidence.

I asked you a number of questions, for more information, and I'll sprinkle those additional details throughout my response.

It's not reasonable to expect a 50/50 custodial schedule outcome when there is 400 miles between the homes. With the current situation, one home is probably going to end up being the primary one during the school year.

Rather than focus on how empty your half of the glass is, let's look at how full your half is:

  • As a result of settling for these temporary orders (before the final trial of July 25), you have the kids for half the time right now. Your attorney can now argue that the mother willfully agreed to this schedule, and hence she admits that she has absolutely no concerns about your parenting abilities nor about the kids' welfare while in your home.

  • You claim you've been doing at least half of the parenting, at least before the mother abruptly left with the kids. If you can prove it with witnesses (or via the mother's deposition testimony), that really helps your case.

  • You work out of the home with a kind of work that may let you largely set your own hours. The mother needs to find work, and you're suggesting she has to do it outside of the home. That's a small point for favoring your home. On the other hand, if the mother is living with the maternal grandmother and her husband, she has a caretaker who can help.

  • Your three kids are all school-age. They have been going to school in the area where you still live. It is in their best interest to have as much stability and continuity as possible, given the now broken home. You get another point in your favor, for a custodial outcome, since you are the parent who can keep them in the same school and activities.

  • Likewise, the kids have all their friends where you live, since you didn't move. I'm going to assume they don't have their friends where the mother is currently living. Another point in favor of your home, but it may be a moot point, depending upon how long you've been away from Georgia.

  • The family church you've attended for years is where you live. It sounds like religious practice and observance is a big part of your family. While religion isn't really a factor in child custody, you'd argue that sticking with family routines is all part of the stability and continuity that could help the children during this difficult time.

  • You say that the children are not to be left alone with the stepfather. If that's in your written agreement, that's a point in your favor since it shows that both sides agree this man may pose a threat to the children. The kids are currently living in the same home as this man. This could be an area to explore in deposition-- asking the mother about the abuse she suffered at his hands.

  • You say your attorney came well-recommended, and he's a long-timer in your area. You saw him in action on one case where he was well-prepared, methodical, and competent; and he ending up winning the case.

So... that's where we are.

Assuming you have no major parenting faults, addiction issues, or violence issues; I think you have a reasonable case to get the kids during most of the school year; with the mother having as frequent access as can be conveniently arranged (and larger chunks during the summer). I suggest you go for that... it's a good starting place for ending up at 50/50 in Georgia.

I suggest you have a status meeting with your attorney. Tell him very clearly that you have whatever funds are needed to do this correctly, and keep his balance paid every month (i.e., THAT is how you keep your case above other clients who owe him money). Ask him specifically what he needs from you. Of everything you wrote, I think your biggest concern should be that you may be really annoying your attorney.

The depositions are a huge opportunity for your case. It's sworn testimony that can be introduced in court, and it's all impromptu, so it's tough to think of the "best" answers right on the spot. You will sit in on the deposition, while your attorney asks her questions. Your attorney probably has his standard questions, and the way you can really help him is to pass him notes occasionally if he needs information related to a particular line of questions.

The deposition is NOT when you try to prove your case. The deposition is to A) find out what her position is, and B) lock her into as many statements as possible. If she recalls one thing in deposition, yet states something else at trial, your attorney (if competent) will call her on it-- and she'll start to lose credibility.

Some deposition topics:

  • If you know her boyfriend's name, have your attorney ask her about that relationship and her intent. Ask her if she intends to move.

  • Ask for her long-term living arrangement plans.

  • Ask her how she currently supports herself, and how she intends to. Ask her how much she think someone with her experience and expertise can realistically make. That answer can be extremely helpful to you... if the court needs help imputing (i.e., estimating) her earning capacity. All you'd need to do is say, "Well, she herself said she can make $2,000/month."

  • Ask her if she has any concerns about you as a parent. If so, ask for all the specific examples she has for each concern (so you know how to prepare to counter). If not, you've locked in her testimony that you have no issues as a parent.

  • Ask her if she thinks you have any drug, drinking, criminal problems. If so, ask for specific examples (again, so you can counter). If not, she's locked in to saying you have none of those problems.

  • Ask her to list the kids' friends where you live. Ask her if it's important that they continue the friendships (it's a no-win answer for her).

  • Ask her to outline who did what parts of parenting during the final year you were together. If you can lock her in to saying you did 50% or more while you lived together, that's gold.

I'm not sure which book you ordered. You could benefit from both "Win Your Child Custody War" and "Child Custody A to Z".

You've got less than a month to build your case, and you need to do it in conjunction with working with your attorney.

Keep your eye on the ball. Your biggest goals are joint custody and 50/50. Take the road that will deliver that.

If it's an ugly trial, that's your road. If it's a settlement, that's your road.

If your attorney is skilled at deposing her, and if the deposition goes well (for you), and if her attorney starts getting concerned that you seem to be stacking up more points as the more stable parent... you'll likely end up settling this thing.

But you won't get into any settlement discussions unless you're serious about putting the pressure on that you intend to prevail at trial. If your wife isn't feeling any pressure, she has no incentive to settle.

Go to it. All you can do is your best. You don't control the outcome.


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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