After being burned by my x many times I finally started to get some rights through my lawyer. My daughter is currently almost a year old and I get to see her tuesday and thursday from 5-8 and saturdays from 10-6. I feel like this is not enough time and I want to be a full time father. I want to be able to have overnights and I keep getting shut down. AFter gaining a few rights in court she now wants to settle out of court claiming that we will reconcile and be civil. She has offered overnights starting Feburary 1st but stipulated that I cannot take her to where my family lives. While settling out of court is appealing, I dont want to be messing myself up for the future. We were supposed to go to mediation and this agreement would be in place of that. We plan to enter in into court but I dont trust her as far as I can throw her. Do you think I am selling myself short by settling out of court?
This is going to be long. Print it out and read it many times.
I asked you some questions to get more background, so readers will see additional information sprinkled through here.
You apparently have an ex who is unreasonable due to venom or due to mental health issues. I asked for substantial background information, and you provided nothing that would warrant her very restrictive demands. Aggressive pursuit of one's needs are the only way of dealing with such a person-- they will typically refuse to negotiate anything reasonable.
Regardless of her personal opinion of you, in court she's going to have to attack you as a father-- not as boyfriend. She seemingly has nothing.
While it's always better to come to resolution via settlement or mediation -- rather than litigation -- if the terms are unacceptable, then settlement is impossible. You're attitude is... always pray for peaceful resolution, but simultaneously prepare for war.
You're at the beginning of figuring out the custody arrangements, and what happens over the next few months will set the stage for the next many years. You are recently separated with a baby. NOW is the time to invest the most into protecting your future relationship with your child. You CAN have a big influence right now.
Here's what I suggest you do to both bolster your position and build your strategy:
- Make sure your war chest is well-funded. If you need to borrow money, put it on credit card, or cash in investments; do it. Though none would likely admit it, attorneys have a tendency to prioritize the cases of clients who are current in payment and who apparently have the funds to proceed with whatever is necessary.
- You currently live with two buddies in a presumably nice house. I don't care if they're the best guys in the world. The perception is that you're living like a care-free bachelor. As soon as possible, move into a quiet, clean two bedroom home or apartment. It's going to let you stand up in court and say, "Your Honor, I already have a nursery all set up, just waiting for my child while she's in my care." It makes you look serious about being a father and equal parent.
- Consider taking a parenting course right now-- ask your attorney for a suggestion of which one is respected (i.e., you want the cheapest, shortest course on the respected list). I don't care if you've got the best parenting skills in the world. It will let you counter the inevitable accusation from mom that you have inadequate parenting skills. You can stand up with your Completion Certificate in court. Boom, mom's point is moot. If it never comes up, nobody needs to know you took such a course.
- Consider taking a polygraph examination stating that you never hit your ex. It'll be a few hundred bucks. Ask your attorney for a referral to a qualified polygraph examiner, and give your attorney the results. Your ex is probably going to raise the DV issue in court and far into the future. Your polygraph is rebuttal evidence. It's going to be inadmissable in court unless your ex agrees to allow it (of course not), but it's something you can show an evaluator, a mediator, future teachers, doctors; or whomever else your ex tells that you're violent. If it never comes up, then nobody needs to know about it. If there have been other specific allegations about you, deny them in the same polygraph session too. If you have a specific bad accusation about your ex, state it in your polygraph exam so you can have that too. You'll be allowed to make three or four statements in the polygraph examination, so exploit it.
- Arrange for a deposition of your ex ASAP. It locks her into her stories. If she says/admits something in deposition, she'll have a tough time changing her story later. Depositions are excellent ways to catch manipulative liars or force people without a position to either admit it's all unfounded opinion or make them state the reasons for their position (which are weak). They typically aren't prepped for it, and they have to answer things on the spot. If she says odd, irrational things during the deposition, your attorney can refer back to it in court. Also during a deposition, your attorney can ask her about YOUR parenting. Depositions are often done before custody battles start getting really nasty. If she expresses no significant concerns about your parenting in deposition, she can't credibly change her story later. So, your attorney will ask her if she thinks you have any drug problems, alcohol problems, violence problems, etc. If she says no, you're good. If she says yes, your attorney will ask her to give all of the specific examples that leads her to conclude XYZ about you. She'll either have to make stuff up (and your attorney can show her your polygraph exam and ask her to explain how you can pass such a thing, if you truly hit her) or she'll bumble, and so her testimony falls apart (again, valuable for court). You need an attorney who is good at deposing and believes in its value. You need to prep your attorney with a page of bulleted items that he may wish to explore in deposition.
By focusing, you can accomplish ALL of that within the next 6 to 8 weeks. The stronger your case is (and her attorney is going to know if she blows it in the deposition, because her attorney will be present but can't guide her answers), the more her attorney is going to encourage her to settle. If you settle, you avoid the cost of trial.
Let's look at what's acceptable in terms of a parenting plan (this is just a starting place):
- The judge is going to let you visit your family (or take the kid wherever you want during your custodial time). Your family resides in the same state only 2 hours away. Her position is absurd, and it's all about trying to slice you and your family out of the child's life as much as possible. Don't agree to any travel restrictions, because the court probably won't make any unless there's a serious threat to the child (e.g., if your family are all in the top ten of wanted sexual predators).
- If you're in your own home at time of a court hearing, the judge is probably going to grant immediate overnights with you. If you're still living with two male buddies, the judge may be concerned about your baby girl sleeping in your home. If you have everything you want in settlement, and the only downside is you need to wait until February for overnights, then it's probably worth it to just settle. But if everything looks bad in settlement, there's no point in taking it. Everyone gives up something in a decent settlement... not one side giving up everything.
- Consider a step-up plan-- either in settlement or in court. For example, the first six months will keep the Monday the same, have Saturdays from 9am until 9am Sunday and have Wednesdays from 5pm until Thursday 9am. This is a very reasonable and age-appropriate plan for a child this age. After six months, it then goes from Fridays at 5pm until Sunday at 9am.
- Be sure to address a holiday schedule. Outline exact begin/end times for each holiday (e.g., July 4 holiday schedule is 10am to 9pm; Thanksgiving is from 9am Wednesday until 6pm Sunday). Take half the calendar's holidays-- you get those in even years (e.g., 2006) and she gets the child during odd years (e.g., 2007). Then you get the other half of holidays in odd years, and she in even.
- Address special days. Child's birthday, and each parent's birthday, for example.
- There's nothing you outlined that should prevent this from being ruled joint custody. Don't settle for less.
- Specify that when child turns 2 years old, each parent shall be allowed to call once daily to speak to child when child is in the other home.
- Specify that receiving parent picks up child upon the start of the custodial time.
- Address that each parent shall notify the other of any education or healthcare appointments with reasonable advanced notice and each parent shall be able to attend such appointments.
- Consider including a summer vacation clause after child turns two years old. Each parent shall have an entire week's period of uninterrupted time with the child between June 1 and August 31. As a generous offer, let the mother pick her week first, which she has to advise by April 30. Beginning when child is three years old, each parent shall have two nonconsecutive weeks of summer vacation.
- Include a clause that special days always take precedent, then holidays, then vacation days, then normal schedule.
- If you end up going to court, ask for MORE than what you feel is best for the child. The court rarely gives a parent everything that is requested.
Finally... it's okay if you need to change your mind regarding settlement discussions. If you signed something and it's entered into orders, it's too late. But if it's not signed, then renegotiate. You're signing out of exhaustion and frustration-- you're not signing something that you feel is best for your child and for you. Grab your testicles and realize you have whatever it takes to protect your future relationship with your child-- it's a commitment that really takes cojones.
Read many posts in my section Parents Just Starting the Divorce/Separation Process
. You need to educate yourself on how to get what is best for you and your child.
Also, get the book "Win Your Child Custody War". I describe it on my Resources
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.