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Father of two kids starting to divorce, wife just removed kids from the family home


Your Question:
My wife and I will be filing for divorce because of her past infedelities. We have 2 children (10 and 5). I currently live at the same residence while she is looking for another job. However, she is busy trying to get herself into school and does not plan to get a job in the immediate future (I could be incorrect her - she refuses to speak to me regarding her job search). I have taken steps to make sure that she does not use the money I earn to go out and receive plastic surgery. I have proof she has tried to accomplish this at my expense. After that, things got ugly. She has repeatedly tried to instigate a violent situation. I have never laid a hand on a woman that way and never would. After an incident where I received a scratch from her that drew blood, I called the police to ensure the situation didn't escalate to something worse. No one was arrested. I filed an injunction against her that was denied pending a hearing a week from now. She is adamant that I leave immediately, get a 2nd job, and support her and my 2 children. In preparation for this. I have leased a 2 bedroom house hopefully for me and my children. I have researched schools in the area as well as summer camps. I wish to tell the judge that I have secured a residence where my children and I can safely live. My paycheck will not cover expenses for 2 residences.

Am I doing the right thing? I'm concerned for my safety and my children's health and well being. This is the best solution that I have come up with that will satisfy all my concerns.

My wife has just decided to take my children to her sister's and spend her nights there until our court hearing on the 6th of April. I told her that I want my children to be able to spend the night at home with me and she can spend her nights at her sister's if that is her preference. I told her that I felt like she was trying to alienate me from my children and I was very concerned about that.

Regarding this, do I have any legal recourse? Would it be to my advantage to allow for this arrangement to continue until the court date (April 6) and then voice my concerns to the judge?

Please advise.

I appreciate so much your site and your assistance.

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My Answer:
Hi,

First, sorry for what you're going through. Getting away from a volatile spouse and building a peaceful home will be liberating, which will offer a bit of balance for the battle into which you're entering.

We've got many issues to cover in your situation.

First, I'll assume that you've been married at least 10 years (i.e., age of oldest child). It sounds like your wife hasn't been working much, and I'll assume that while you've been out working at a full-time job, she's been the one mostly home with the kids during the day and after school.

MONEY STUFF

    Depending upon the state you live in, you may have to pay some spousal support. There will also be an assignment of child support, subsequent to the court's orders on custodial arrangement. So, it'd be safe for you to assume that you will be supporting two households to some degree, but definitely not 100% of both households.

    With regard to your wife's desire to return to school versus working, she's going to have to make a strong argument that going back to school will deliver her to a place of earning significantly greater income than she can today. Else, you can argue that she's doing it out of leisure or self-interest (e.g., if she enrolls in a basket-weaving program instead of a nursing program). A court may find it reasonable if she sufficiently shows that completing a 2 year program will result in her earning $20k higher than without it. The ONLY thing that matters with this is the money aspect. If she ain't doing it for greater earning power, then the court usually has discretion to impute her earning capacity today with no consideration for her time/cost of schooling (i.e., that's how it is in California and some other states, but I don't know if every state is like that).

    If she doesn't go to school and doesn't work, then the court may impute her earning capacity at what you can show through evidence is her reasonable income expectation. (I spent a couple years building evidence to show my ex's earning capacity, because she absolutely refused to work year after year-- which maximized child support I paid. When I finally argued it in court, the judge agreed with me and imputed her income at the lower end of what I was arguing: $45,000/year).

    Incidentally, no court can order you to work more than a full-time week. It'd be entirely your choice to do so. Keep in mind that when it comes to spousal/child support, the court will look at your historical earnings. If you worked a 2nd job and made an extra $10k during the past year, that may come back to bite you via paying more support. However, plenty of parents do need to find extra income. You just need to consider your budget as well as possible impact on court rulings.


VIOLENCE STUFF

    It would be a good idea to never be alone with your wife again. It's far too easy for false accusations to happen. If you must be alone with her, always have a micro-cassette recorder in your pocket. If things start to get volatile, whip it out, start recording, and yell, "I'm recording!".

    Defeating a false accusation puts you in a defensive posture, it sucks up resources, and it can result in a steep uphill battle thereafter, regardless of innocence or guilt.

    With a focus on the kids, obviously you don't need me to tell you that they shouldn't be exposed to such volatility. If your wife is like that with everyone, and her volatility isn't just a function of a marriage failing, that should be a big concern of yours in pursuing custody.


CHILD CUSTODY/WELFARE STUFF

    Unfortunately, if your wife has been staying home with the kids for the past many years, you're starting off with a huge disadvantage in court.

    "Best interest of the child" is presumed to be minimizing change for them, unless evidence otherwise shows that the status quo is not in their best interest. So, if mom has been their primary caretaker during the day, the status quo is to allow that to continue after the separation.

    That's just the way it is.

    I read everything you wrote. I understand your concerns about her volatility. I understand that's one of the reasons why you want out. I understand that's why you think you should have custody. I understand that she sure as heck wasn't going to work, so you had to put food on the table and a roof over the kids' heads. But her attorney will counter, "If she's so dangerous, why did Mr. S leave her home to care for the kids day after day, year after year?! Mr. S wasn't concerned during all those years, but now he suddenly is? It's hogwash."

    Let's look at some other things in your situation:

    • You secured a new home for you and the kids-- sounds great and shows responsibility. However, the kids are best served staying in the home that is familiar to them. Also, the kids are presumably best served staying in their current schools. So, it's much tougher to argue that than to argue, "I should stay in the marital home with the kids, as I'm the more stable parent and staying here would help to minimize all the change they have to endure."
    • At the same time, your wife just ripped the kids out of their home and dragged them to a relative's house. If mom isn't arguing that you're dangerous, this is obviously self-serving on her part, with no consideration for the kids. In the hands of a good attorney, you may have a shot at getting temporary orders on April 6 that the kids return home (i.e., their best interest), that you stay there (i.e., per the status quo), and that mom comes and picks them up to spend time with them. That would be a tremendous achievement for you, and your wife may have inadvertantly created this opportunity-- now that you've separated your residences, I don't think a judge will order you back together. Mom left, you didn't. Don't mention the leased home until you're ordered to leave the marital home. If this pans out, you may end up just eating your deposit on that lease, and no one would have to know about it. Such a development would be HUGE for the long-term custody arrangement.
    • Mom wants plastic surgery. This is largely irrelevant unless you can show that she took resources away from the kids, resulting in potential jeopardy (e.g., buying boobs or a face lift instead of shoes and books for the kids). If you have evidence of her attempting to get plastic surgery after the separation, your attorney might twist it a bit to show that mom obviously has access to plenty of resources, so spousal support isn't necessary.


    It's important that you learn how to craft your arguments in the frameset of what's best for the kids. If you're going for majority of custodial timeshare, you need to outline why that's best. You need your ducks in a row with childcare, work schedule flexibility (e.g., child has high fever at 9AM, and you need to rush them into the pediatrician), parenting knowledge (e.g., secretly take a parenting class that provides a certificate of completion, so you can toss that into evidence when timely).

    Get the book, "Win Your Child Custody War" by Hardwick. There's a link to it on my Resources page. You may have many court hearings about child custody, and this may last 1 to 2 years. This book is a $70 investment in knowledge, strategy, and approach; and it will be your most valuable ally as you learn how this process works. That's less than the cost of 15 minutes of a family law attorney. I don't believe there is any better book out there.


Please write back and let me know how it goes on April 6. Stay focused on framing your arguments for the kids' best interest, and that's all you can do.

Good luck.

Eric





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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