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Father of two children starting divorce process; wants to know chances of getting custody and if temporary orders for custody are possible

Your Question:
Wife filed for divorce in June (married 9 years). Wants full custody of our sons ages 5 and 7 and alimony

Since then she now stays/lives with another guy and comes stays in the home perhaps one night a week to show she has not abandoned the children I suppose.

She most recently was fired from her job and now claims she is going back to school full-time. She is also working at a bar and drawing unemployment.

I take care of our two sons, drop off and pick up after school. Feed, clothe, bath, do homework and participate in church and sports as their team coach. Mom claims she does not want to be in the home (filed false DV charges against me 2 years ago, but later dropped them), and now does not see the boys, call the boys or participate in any of their actives, which I have been documenting.

I have a woman attorney who suggest I am better off to mediate which a hearing is coming up in a few weeks

What are the probable chances of getting sole custody? 50/50 joint custody? Keep the boys in the home with me during possible temporary custody hearing then full court order?

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My Answer:

Thanks for writing.

Okay, so time is running a little short before your first mediation appointment. I'm not sure how your state works with regard to mediation, so ask your attorney how important it is for you to make a significant effort for that round. Some mediators only report to the court, "Agreement was/wasn't reached." Other mediators may report more to the court (i.e., "Mom tried to compromise, dad didn't"). If you're in the latter case, you have to at least make a show that you're trying to resolve things.

Generally, I encourage people to enter mediation seriously, and avoid court at all costs. In your case, you have a mother who wants everything but has demonstrated nothing. This person is not a good candidate for mediation.

If everything you've outlined is true, then my gut reaction is either you're leaving out some important facts, or your attorney may be the wrong one for you. If you're interested in getting sole custody, or 50/50 custody, this attorney can be doing so much right now to put you in a better position. If she's merely saying, "Oh, mediation is your best shot, sorry", then I urge you to intervew other attorneys to get their opinions. You should lay out the exact scenario you described to me, including your goals for what best serves the kids, and see what they say.

It's quite possible that your attorney knows something about your judge or trends in your state/county that I don't. That's why it's important for you to talk with at least one other attorney in your area, if not more than one.

To have a good shot at 50% or more custodial time, some effort on your part can really help your situation and placing the kids in what appears to be the more stable and responsible household. Here's what I suggest you do:

  • Get really familiar with What You Must Know on this website.

  • Seriously consider buying the book "Win Your Child Custody War" by Hardwick. Your local bookstore may have it, get it on Ebay, on Amazon, wherever. I describe it further on my What You Must Have page.

  • VERY IMPORTANT is for you to keep a daily journal. You can do it in a spiral notebook, you can do it in MS Excel, or you can get specialized software like OPTIMAL (also described on my What You Must Have page). In your daily journal, track all the parenting responsibilities you did that day (e.g., "Woke up kids at 7am, helped dress them, gave breakfast. 8am, brought kids to school. 3pm, picked up kids from school. Went to library and playground. 5pm, made dinner for kids. 7pm, bathed kids, put them to bed at 8pm."). When you start it (today, right?), try to back date it far back as your memory allows. This will take 10 minutes per day, and it will cost you nothing. Anyone starting out with child custody litigation would be foolish not to do this.

  • If you have the money to spare (one or two thousand, perhaps), hire a private investigator to build evidence on what you described of the mother's new lifestyle since June. If you come before a judge, you will claim that the mother was living away from the home 90% of the time. The mother will claim that she was at home 90% of the time. Unless you have some other evidence, the judge won't know who to believe. A private investigator can build you solid evidence on where she's working, what time she gets home, where she sleeps, etc. That evidence can be invaluable in destroying mom's credibility and also demonstrating that her lifestyle is not conducive to being a parent with majority timeshare. If the investigator documents frequent drinking-and-driving or use of illicit drugs, the case gets pretty bad for mom.

Between the journal, the investigator, and potential witnesses like the kids' teachers, you are going to demonstrate solidly that YOU are the parent raising these kids. If you effectively demonstrate that to the court, the judge will find it in the kids' best interest to spend a significant amount of time in your care. Whether it's 50% or 75% will be at the judge's discretion.

The reason why I'm concerned about your attorney is that she hasn't advised you to strengthen your position, as a layperson like me even knows to do. You want an attorney who will think strategically do maximize your chance of achieving what you feel is best for the kids, and that includes a whole lot of preparation before ever entering the court.

It's very critical to get temporary orders that are favorable to what you think is best for the boys. In most cases, the final orders tend not to stray too far from any temporary orders in place. So, even though the word is "temporary", those first set of court orders are really going to have an impact on the final ones. Hence the need to be proactive in building your case at this stage in the process, rather than waiting to see what may happen at mediation or a hearing for temporary orders shortly thereafter.

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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