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Never-married stable father facing first hearing on custody arrangements of 5 month old daughter; mother possibly unstable

Your Question:
My ex-girlfriend XGF and I had a child this past December. The baby is a beautiful little girl, my first child, her third. We had been dating for approximately 2 years at birth of the child. The mother has been fighting, with my help for custody of her 4 yo boy, current shared parenting, ex is an aXXhole to say the least. After becoming pregnant XGF moved into my home, that was part of the basis for custody dispute with her ex. She prevailed with the magistrate, of cource ex appealed. But the real problem.... While pregnant XGF quit her job, rather than face demotion, lost her healthcare and went on Medicaid and other public assistance$$$. As anyone knows money is always one of the biggest issues in marriage(co-habitating) and things went from bad to worse. XGF ende up moving out of my house while I was at work(24 hour shift Firefighter) totally unannounced. We aptched things up and she cam back a couple of weeks later. After being "home" for 2 weeks she ran over my dog in the driveway and rather than face a butt chewing she moved out again. She was gone untill after the baby was born. At the hospital she had her tubes tied, we had discussed more children prior to all the problems, and told me she declared bankruptcy when she moved out the first time. WE had been paying her bills, with about $7000 involvement from me for bills and custody costs. At the hospital we discussee our future and I told her the ONLY way I would continue was if I got FULL custody of our child up front, to save me for fighting when/if she screwed up again. She agreed to this and restated that opinion 2 weeks later. I had an atty draw it up and she has refused to sign it, wanting "me to make it fair." I had offered to have both of us sit down with my atty but she refused. I had started custody paperwork with the atty and after finding a job (4th in 2 1/2 years) she moved out again, 7 address changes since Nov 2004. I insisted on a self- written parenting plan prior to her move, she actually told me on a friday she was moving sunday( I had to work Saturday). We have a decent schedule and I do get to see my daughter, but I do not want her making decisions for my daughter. XGF has tried to put Daughter on Medicaid(I have her on my HC Ins) because she does not want to help with co- pay. My state recognises a single mother a sole custodian of child till challenged, and I am challenging. I have an excellent past 9+ years as FF and 7 at current employer, Honerable Disch Marine, home owner etc. I understand that my daughter needs contact with her mother and I am not against it but I want sole legal custody. XGF has now opted to give up 4 yo siting her instability. We have been to a counselor as a couple and talking to him he thinks XGF has "deeper issues" and he hopes the XGF continues some counseling. No diagnosed mental depression, but it is there I have seen it plenty at the job(paramedic also). I have ordered the Win your custody war book and it should be here next week and I have done way too much surfing and have reams of articles printed off and am starting to highlight important points on all of it. I know I am going up hill on this battle(Iwo Jima, ohhrah) but I am totally commited to my daughter and will do what I need to for her sake. Our current schedule allows me to be PCP which will help, and I am very active with my daughter. I have shopped more in the past 4 months than the last 4 years combined. I will quit babbling now, but do I have a chance? What is my best way to point out her flaws with out making the judge mad? How about a Custody Evaluator, would they look at the whole picture more indepth than a court hearing? Any help would be appreciated. Thanks

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My Answer:

Congratulations for a couple things... 1) New dad, 2) Writing me the longest email yet! You also gave me additional details (not posted) in reply to a few questions I had. I think I can lay out a solid strategy for you that would give you the best chance of protecting the welfare of this child.

First, you're in a good position right now, I believe, to remain much more involved in this child's life than the average dad.

I'm going to help you leap forward in understanding what's relevant and what's not. The book you ordered does it in 600 pages. It's a must-have book for all separated parents facing a custody conflict (link to Win Your Child Custody War is available on my Resources page).

Let's look at your situation:

  • You've described a recent parenting schedule that sounds pretty close to 50/50. The longer you can drag out that schedule (if not more time in your home), the better. When ruling, the court will look at the status quo arrangement and place much weight on it. In your case, you're dealing with an infant, and it's a huge testament to your parenting abilities (and the mother's trust in your abilities) that you care for an infant half the time. Build evidence (i.e., objective witnesses) to demonstrate that you have had the child 50% of the time. For example, tell a neighbor what you're facing, and ask the neighbor to keep a journal and mark on which days the neighbor saw the child in your care.

  • You own your own home (stability) versus mother's 7 residences in 6 months. This is a big argument for the child having greater stability with you. Very relevant, so gather evidence to prove it (i.e., if she sent you correspondence notifying you of each address, or do a Request for Admissions via discovery on each of those addresses).

  • You suspect the mother has some mental health issues. Unless you have a psychologist willing to testify to this, you should never raise this in court. Judges hear parents call each other crazy all day long, and the judge will ignore you (perhaps on other issues too)... UNLESS you lay it out in layperson observation of troubling behavior (e.g., "Every 15 minutes, like clockwork, Mom slaps her face and then hoots like a chimp. It's very odd, and I don't understand it.") and then let the judge conclude it must be a result of mental health problems. Further, even if an expert were to testify to her mental health deficiencies, it would have to be framed in the context of how it actually harms the child (i.e., not theoretically), as that's all the court cares about.

  • Your parents are nearby to aid with babysitting. Very relevant and important. It shows that you have the capacity to work at your job (i.e., support your home) and have long-term, stable childcare via the grandparents. This is an even greater consideration if the mother has little or no support nearby for her own home.

  • Mother is on public assistance. Largely irrelevant, unless she's spending all her money on crack and gambling. Just because someone is poor doesn't make them a bad parent. Probably shouldn't bring it up.

  • Mother quit her job instead of a demotion. Irrelevant. Don't bring it up.

  • Keep in mind that if you try to make a huge case out of mother not having enough money, that could come back to bite you throughout your custody proceedings-- guess who will pay entirely for her attorney and for the custody evaluation, if you yourself testified previously that she has no money?

  • You and mother originally agreed that you would have sole custody, and she backed out. Irrelevant. Discussions made in attempt to reach settlement are inadmissable in court. Don't bring it up.

  • Mother doesn't have custody of her 15 year old. Mother is giving up custody of her 4 year old. I think this information is extremely relevant if you can connect it to mother's inability to cope with the responsibilities of being a parent. These issues deserve greater exploration on your part, likely worth spending the money to depose mother and probe why. In deposition, she'll give reasons under sworn testimony, she won't have any advanced time to think about the answers (or impact on your case), and it locks in her answers to use as evidence at a future trial and/or custody evaluation. To be clear-- if you can demonstrate how those kids living away from mother is also relevant to this child's interests-- I think this may be your strongest argument for placing the child primarily in your home.

Now, on to your specific questions: "I will quit babbling now, but do I have a chance? What is my best way to point out her flaws with out making the judge mad? How about a Custody Evaluator, would they look at the whole picture more indepth than a court hearing?"

Everyone has a chance. There is one quality shared by people who achieve their objective-- they never gave up. Just keep doing what you have to do, and that's all you can do. If you have a competent attorney, I could see you getting at least approximately 50% custodial time.

Don't worry about whether the judge will get mad. Craft ALL of your arguments around the child's welfare. You should explain why the mother's flaws concern you... "I'm concerned that the mother has moved 7 times since November 2004 because children need stability and continuity, especially during their formative years." If you can't turn a maternal flaw into a valid and reasonable concern for your child, then you're fixating on something that is probably irrelevant. A big mistake many litigants do is try to build their case on speculation for the future, which fails to sway the court. The case has to be built on historical actions, hence why the outcomes of the two prior kids is important in assessing this mother's abilities to handle responsibility (or not).

A custody evaluator would likely benefit your position, if all that you outline is true, and you have no significant skeletons that would be exposed during the process.

Your case is such that you need an attorney who is a "big picture" strategist. You're fighting a slightly uphill battle as a never-married parent for this first hearing, and it may really be a year or two until you have a final judgment. It's already too late for your attorney to depose the mother for the May 13 hearing.

I'd suggest that your attorney may want to move for a custody evaluation on May 13, along with attempting to get the status quo schedule made into orders. By protecting the 50/50 arrangement right now (i.e., via court orders), it means that the mother can't arbitrarily change her mind on when child will see you. It also means that the final outcome will likely remain 50/50 or sway in one direction or the other. It would be much tougher to get a final judgment that flips from 75% in one home to 75% in the other.

Also, expect child support to be determined on May 13.

Finally, getting sole legal custody isn't going to happen for a while, barring anything major that the mother does wrong. You're going to have to put up with her baloney for a while. You should drop this as a goal, unless the evaluator recommends it.

Please let me know what happens on May 13. 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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