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Recently separated father wonders if mother leaving children alone can help his case

Your Question:
Describe your situation and question(s):: My wife and I are currently seperated, we haven't filed legally yet. We have 2 children together (6 yr and 10 mo), and she has 2 from a previous marriage (12 and 10 yrs). I have my kids every weekend, and days off, and sometimes bring my stepchildren with me. Anyway, since the split up, I have been buying groceries on a weekly basis for them, and bought all clothes and school supplies. She has been sending my boys to me with dirty clothes, I ended up buying them some, since she did take the W&D. Although my ex-wife is very active in the community, her actions recently has had me thinking about fighting for custody. This past weekend, while I had my boys, she left the other two at home while she went off camping with "friends". She said that her brother was going to watch them. I called to check on them and see if their uncle had shown up. I called their uncle, to see if he was coming to stay with them, if not I'd go pick them up. I also learned from the 12 yr old, that she has left them home alone, with the baby, to go to community functions, i.e. cubscouts and pta.

Are these grounds enough to shoot for full custody?

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My Answer:

So... we have another parent who apparently hasn't done much reading on my website and who hasn't read any good books on issues involving child custody. [sigh]

Look at my What you must know page.

Here's our starting place, with regard to going to court. The judge mostly wants to know:

  • Who has historically taken care of the kids the majority of the time;

  • Does either parent pose a serious risk to the kids;

  • Does either parent have drug/alcohol issues;

  • Does either parent fall well below AVERAGE parenting ability.

In your situation, you admit that the mother has been taking care of the children the majority of the time. So, that's strike one against you.

Thereafter, you have to show a judge through clear and convincing evidence that the historical arrangement has been so bad for the kids that it's important to disrupt the historical arrangement.

Dirty clothes, unwashed face, blah blah blah. Usually, it's the mother who claims such things. Realistically, unless the school is making notes and filing reports, it's not bad enough. Drop that.

Leaving the kids alone for days on end, with a 12 year old to supervise, is pretty relevant. Your biggest challenge is proving it. Where's the evidence, if she denies the allegation? Without evidence, you lose.

I recall that my sister started babysitting when she was 12. It's possible that a 12 year old may be mature enough to care for her younger siblings for 2 hours. So, it may not be relevant if the children are alone for very short periods of time. That's not a decision that I'd make, but it may not ruffle a judge's feathers in a child custody decision.

Your road to success is going to be in solid documentation. The more time you spend with the kids, the better for the ultimate outcome. Use software like OPTIMAL (I describe it on my What You Must Have page) to keep very specific details of the time you spend with the children.

If you have the money, you may wish to hire a private investigator on days that you anticipate the children may be left alone in the home. The PI can document (and later testify) that the mother left at 9:10am and returned at 4:22pm, and no other adult ever entered the home. If you can get a few examples like that, it's probably going to be influential in court... no so much for neglect, but rather showing the mother really isn't interested in taking care of the kids during her custodial time, so you should have greater timeshare.

After one of you files, I also suggest that instead of buying a bunch of stuff for your ex in her household, you give her a monthly check with "Support for the kids" written in the memo field. This way, you won't face huge retroactive arrears if/when child support gets assigned. A judge can make child support retroactive back to the filing date. If you buy her food and other stuff, it's not viewed as support. It's viewed as a gift. But, if you give her a monthly check labeled "support" (with which she can buy food, supplies, and clothes), you'll be able to demonstrate you've paid support all along, and you'll get credit for it.

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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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