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Out-of-state noncustodial father has had one weekend a month with daughter; he recently moved close to mother-- can he try for more time?


Your Question:
My husband has one weekend a month, some holiday visitation and a week in the summer.We lived out of state when this order was set.The mother was given sole legal and physical custody.We returned to their state for these viset's. My husband didnt know the child was his untill she was a year old. We now live in the same state,close by and would like to change his visets to every weekend, more time at the holidays and more info on whats going on in their childs life(school ect.). Is this possible without having a long fight? My huband has been getting her as meny weekends she'll allow. Please help!!

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My Answer:
Hi,

Thanks for writing. You provided additional information (not posted) that the child is pre-adolescent and that you now live less than 2 miles away from the mother.

Assuming that you and your husband offer a safe, stable, nurturing home, I think he has a decent shot at getting court orders for additional custodial time.

To clarify, though, asking the court to modify the parenting plan isn't the same as asking the court to modify custody. It's easier for the court to do the former than the latter.

So, I'd suggest the approach that husband lays out his efforts to repeatedly travel across states during the past decade to spend time with the child per court orders plus any additional time the mother occasionally allowed (if ever). He should lay out that he specifically moved closer to the mother in hopes of being even more involved in this child's life. Further, note that the proximity between the homes ensures that daughter's life with friends and activities won't be burdened in the least (i.e., presuming that he will support any existing friends and extracurricular activities during his custodial time).

I don't know if his hopes of every weekend is going to fly, though. Courts rarely will strip all the weekends away from one parent. He can certainly try for it, but it's also a bit important (not critically important) to come across as reasonable to the judge and truly interested in the child's best interest. Is it in the child's best interest to remove all of her weekends with her mother (the historical primary parent); to strip away quality weekend bonding opportunities with the mother? I can't imagine a judge finding that would be best for the child. But perhaps he can ask for the first three weekends of the month (letting the mother have the fourth, and also the fifth if available).

At the very least, I imagine the court will give him the standard every-other-weekend plus one or two weekday periods (e.g., 3-5 hours). Also, he should expect to have alternating holidays (e.g., daughter with him for Thanksgiving on even years, with mom for Thanksgiving on odd years). Finally, it's reasonable that each parent would get 2 to 4 weeks vacation during the summer. Even if your husband only gets these things, it's way better than your current parenting plan.

Additionally, it's reasonable to request a court to order that the dad is to be notified of all school and extracurricular events to which parents are invited (e.g., talent show, swim meet, cheerleading contest, etc). I don't think he has a good shot at getting orders to be included in the education decision-making process, as that is left to the parent with sole custody.

In answer to your question about getting into a long fight, it shouldn't be too long. I'd encourage you to find a good family law attorney in your area, which will increase your chances quite a bit to effectively argue for what is best for this child (i.e., it's NOT about what is best for dad or mom). Again, your husband will be going only for a modification to the parenting plan, leaving sole custody with mom. If dad is a good guy, there's really no good "best interest" argument to support that the daughter should only see him once a month, when he's only two miles away.

The mother will either attorney-up herself and fight it, or she'll try to settle (always best to settle), or she'll represent herself in court to fight it. If she fights it, expect her to unleash a torrent of negative things about the father, as that will be her only viable reason to oppose the father's request.

I imagine that you'll get your answer within two or three months of filing, and you may spend several thousand dollars before it's done. To me, that's a short fight. The payoff is a deeper bond with one's child for many more years, so it's a no brainer (to me) to go for it.

The WORST that will happen is that what you have today will remain in place, and you'll be out some cash. I think the chances are very, very good that your husband will walk away with more custodial time in some amount (again, presuming you haven't left out any details like he's a sex slave trafficker). It's just a question of whether he'll get everything for which he hoped or not.

Please let me know how it turns out.

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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