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Father with 50/50 custodial time now up against mother's attempt for sole custody


Your Question:
First of all, Thank you for providing this service, it is very nice to be able to talk to someone who has been through it all.

My situation is this: Through my divorce I was able to get 50% custody of my child ( I get her one week, her mother gets her the next and so forth). As of this week my ex-wife has sued me for full custody of our daughter and I really need some help and ideas to fight this once and for all. The reason I got 50% custody the first time around was because I was able to prove a few things such as the fact that she had an affair with an ex-convict and was still seeing him, I was the primary care giver for our daughter because she was going out all the time, and things like this. I was able to get an injunction put against the convict so that he could not be around my daughter but that injunction was lifted this past January (was in affect one full year - once lifted he promptly moved in). Regardless of the injunction she continued to see him and would even leave my daughter with someone on her week so that she could go see this guy. Also my daughter has come home to me saying that he yells and cusses out her mommy a lot. As of right now I am in a good position because I am happily remarried, own a home, have a stable household with two other children from my wife, and also my wife is and always has been a stay at home mom . I know that right now, all i've given you is a lot of he said she said stuff. Nothing I can actually prove because it is what my seven year old daughter is telling me. My lawyer said that it would be best to counter-sue for full custody instead of just trying to keep the 50-50 custody arrangement. But now I have to prove to them with hard evidence that my home would be better than hers. Got any ideas of what to do? I want to settle for nothing less than 50% custody...but how do I do this?

Also, my daughter is 7 so she should be able to express how she feels about each home but my ex-wife has also got her very dependent on her. For example still bathing her, making her feel guilty that she is going to see me...telling her things like 'Im going to be all alone without you here'.
Also, i think what my ex-wife is using to even open the case is that I now live 41 miles from my daughter, every day though we make the drive to and from school and have no problems. When we started making her drive out here to pick our daughter up for her weeks with her..that is when we started having problems.

And i do believe financial reasons are the main cause of this. I know she was upset that she didn't get child support the first time around even though we had 50-50 custody...she still wanted child support! So now she is asking for it again as well as full custody.

I really don't know what to do so any help you can offer would be greatly appreciated.

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My Answer:
Hi,

Based upon the limited information you give, it's anyone's game. It's quite possible that nothing will happen. Neither of you have a slamdunk.

You haven't really described anything that warrants a change of custody. Barring some issues you haven't mentioned, all signs point to you still having joint custody at the end of this court hearing. Beyond that, it's going to depend upon the judge to decide if the parenting schedule needs to be adjusted.

According to you, the ONLY thing in mom's favor is that you now live 41 miles away from child's school. That is a heck of a schlep to do twice daily, for a 7 year old child. Unless you show that you have turned those 41 miles into quality parenting time (e.g., you take a train, and you and she play games and do homework together during the train ride), a court may have some concerns about this. Enough to modify the parenting schedule? Nobody can predict. It'd be helpful if you had a teacher on your side, because then a court could balance the 41 miles with, "Well, a teacher seems to indicate that child is better prepared for school while in the father's care."

So, let's look at mom's home. According to you, a man previously restrained from having contact with your child is now living with the mother. But on the other hand, he moved into her home in January (when the restraining order was lifted), and you did nothing!

If it was SOOOO dangerous, you would have filed orders for sole custody the day after you found out this guy moved into the mother's home. So, it's a hard sell for you to now say (in response to the mother's petition for sole custody) that this guy is too dangerous to be around the child. I'm sure you can understand an outsider's perspective on this.

I think your position ought to be, "Well, I figured I couldn't force this guy not to move in, once the restraining order was lifted, so I wanted to give mom's decision the benefit of the doubt. But 5 months later, my child is now describing a certain level of fear about this man and she describes him as pretty volatile. This was my concern from the outset-- his past shows that he's a violent criminal, and it's spilling into the mother's home."

If you take the child to a psychologist, who then reports on the same about the child's fear of boyfriend and feeling pressure from mom to hate you, that's pretty good for you.

If you have a thousand (or two) bucks, hire a private investigator to REALLY look into this guy's past.

If you get serious dirt on him, if he's a repeat offender, if he's got drug and alcohol issues-- you have nearly 100% guarantee that the judge will NOT put this child into the mother's home at a greater level than present.

It's good that you recognize that you don't have much of a case right now, due to He Said She Said. Some people are ignorant to the work they need to do, but you're aware of it.

Bolster your case with good evidence. For extremely good guidance on how to do that, get a copy of Guy White's book called "Child Custody A to Z". It's on my Recommended Books page.

This case - years after your divorce - isn't about proving which home is better. It's about proving that the current situation is so bad for the child, a different parenting plan is necessary. If both homes are adequate, and if the judge isn't concerned about the boyfriend or the 41 miles, then you'll walk out with everything getting dismissed on both sides. I don't think you have enough to change custody, unless your attorney knows facts that you haven't shared. You MAY have enough to get more custodial time with the child, which doesn't necessarily give you sole custody.

As to things I didn't address... don't try to speculate about the mother's motivations. You'll sound goofy. Just lay out your case as to why what you're seeking is now best for this child.

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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