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Father has one child, unstable mother has the other, and they're about to head into custody war

Your Question:
In Oct. of last year my son's mother (we were never married), sent my son (5)to live with my fiance, our infant son, and myself. She stated reasons of not being able to handle him, the fact that she lives in a bad neighborhood, and that he was having a lot of problems in school. I have this all in writing from emails that she wrote. Even last week she wrote an email, stating that sending our son to live with me was 'her idea.' I immediately registered him in kindergarten, and anyone can tell you that he's been flourishing in his new school. Then a couple weeks ago, before he was scheduled to go to her house for a weekend visit she says that she's not bringing him back. So I didn't send him, and I contacted a lawyer who drafted a custody agreement, detailing everything exactly as it is now. He advised me to not send my son to her house since he was in danger of being kept there, and there is no court order stating that I have to send him. My daughter, who lives with her mother (3 yrs ), has still been coming over every other weekend. We've never had any kind of custody agreement/order.

She said that she would sign, but then the next day went down to domestic relations and filed for custody of both children. She told me verbally over the phone that she needed money. She's on disability for bipolar disorder. She takes lithium for her mental disorder. She takes a morphine patch for some kind of back problem, and i have years of answering machine tapes were she typically says something along the lines of "these are my f'ing kids, and you will never ever see them again..."..and things to that nature. My fiancee and myself pressed charges against her for simple assault in 2 seperate incidents, and my fiancee has a police report on file from her calling our house and making terroristic threats against her. She called Children and Youth on herself 2 years ago, and told them that she couldn't handle the kids. They put her in counseling and have paid for her daycare for 2 years. Though she stopped that, this week, presumably because of all of this stuff. She also stopped attending counseling, and taking her medications, claiming that her caseworker told her that she didn't need help anymore. haha. Funny she's 'well enough' to raise children, but not to hold down any kind of job. I can document that she didn't take my son to dr's and dentist apts. An initial court date was set for April. I'm assuming at that date, the court will see that we don't agree, that we both want the children, and then the evaluations, etc. will start. She has no idea how costly this is going to be, and how arduous a process. She thinks that when we go to court in April that the judge will decide then and there. She has no lawyer, and if she does get one, it will be through legal aid.

My question is this. I have desperately wanted both of my children to live with me and my family since this whole mess happened. But I could never tell her that because she would have used to to her advantage and held it against me. Now that I'm in this scenerio, where I tried to be reasonable, and keep things the way that they are, but make it official to protect both of us. I don't think that she has any idea that I've been documenting her antics for years. She has no idea what she'll hear about herself when we're in court. She has nothing against me, except that I'm an alcoholic who's been sober, and regularly attending AA for 5 years. I've never once called her house and left nasty messages, or any kind of emails or anything. I've always (prior to the order being vacated when i got my son) paid my child support on time, and spent regular weekends with my kids.

I can document everything that I've said above. I know that getting my daughter is going to be a long shot, but I also know that courts don't like to seperate siblings. But then again, I know that courts tend to favor the mother. But that they also tend to favor the status quo.I know that you can't predict the future here. But do you have any idea of how good my chances are of at least not losing my son?

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My Answer:

You understand that I'm not an attorney, judge, child custody evaluator, or psychic.

Given that disclaimer, I think you'd have to find a fairly incompetent attorney for you not to get majority timeshare with your son upon a custody ruling. The ruling itself may be sole or joint, depends upon the judge, but what you've laid out places him in your care for most of the time.

Here are some concerns and additional thoughts I offer for your consideration:
  • If you go to trial, you may end up paying some of her attorney fees. Ask your attorney about this possibility. It's different in different states.
  • If all that you say is true, a thorough custody evaluation would benefit you for BOTH kids. Without one, I think you may have less of a chance at getting custody of your 3 year old daughter.
  • If you're married by the time you have a custody evaluation and/or trial, your home becomes even more stable... so long as your fiance isn't a threat to the kids.
  • If one's disability doesn't affect one's ability to be a parent, then it's a moot point. Drop it. You know she doesn't have a job because she's lazy, but the court doesn't care.
  • I agree that you really have no choice but to disallow mom's contact with your son, due to her historical threats and recent one. However, you need to consider a defense to this. The court or a custody evaluator may view this as intentionally preventing the child from seeing his mother-- and that's not a good thing. Perhaps your attorney, in his correspondence in attempt to settle, could repeatedly state that a fast settlement would be ideal so that mother and son can be reunited for their quality time together.
  • The longer you go with the current situation, the better for you (with regards to your son). It could potentially also aid the situation with your daughter, because the mother may not be able to handle it for month after month. But it may also be worse for your chances of getting majority timeshare with daughter.
  • Keep in mind that refusing contact between son and mother may result in a retaliation of refusing contact between daughter and father. For this reason, your attorney may want to seek immediate temporary orders for the status quo and move for a custody evaluation at the same hearing-- one helps to lock in status quo with your son while taking a step to demonstrate which home is better for daughter.
  • According to Marc J. Ackerman's studies (he's an established researcher on child custody matters), active alcoholism is among the biggest strikes against a parent getting custody. However, his studies conclude that evaluators and judges alike don't differentiate between a long-recovered alcoholic and a never addicted parent. You can demonstrate 5 years clean and sober (ever since oldest child was born), so moot point.
You know what's best for these kids. I'm a big proponent of parenting plans with approximately 50/50 timeshare where logistically possible, and in situations with two healthy parents. From what you've outlined, mom has some significant issues she needs to resolve before she's able to be a healthy parent. If what you say is true, and if I were in your shoes, I'd believe that I'd be pursuing majority custodial timeshare for both kids.

You don't need to tell anyone that you've always wanted the kids. Duh, we all want that. Don't ever make this confession, because then it may seem as though you've been plotting all this time (and now withholding the son).

Above all, don't show your cards to the mother. You should have the attitude of "mediation is best, but litigation may be necessary." If you can resolve issues in mediation, awesome. If not, you need all your ammo for litigation, and you should never let her know in advance what your ammo is. Let her discover in court.

Finally, you've obviously got your head screwed on straight, from the clarity of your writing and your clear thinking. You're someone who would really benefit from the book "Win Your Child Custody War." It's a monster of a book, but it will give you long-term strategies, tactics, and guidance on the one to two years it may take before you have a final judgment on child custody with your kids. For convenience, I've got a link to the book on Amazon via my Recommended Resources page.

By the way, you don't need me to tell you that you've got a real mess on your hands for raising two stable, confident kids. Go to bat for them 100%, and never give up, no matter how frustrating your court experiences will be. Courts are sometimes slow on decisions. The one thing possessed by every parent who has prevailed in court is never giving up.

Good luck, and please let me know how things go.


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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