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Previous custodial father was never married to mother; mother recently took custody back; now awaiting trial

Your Question:
I recently filed for custody of my 4 year old daughter. I have been her primary parent since birth. Her mother and I were never married and we borke up when my daughter was 1 1/2. I have always had my daughter well over 50% of the time. Recently her mother moved to another state about 1 1/2 hours away. We had verbally agreed that we would each have our daughter for a week at a time until she began school. We didn't have a court order at the time. Well she came to pick her up in January and then called me and told me I couldn't see my daughter anymore until court. She won't even let me talk to her. I took quick action and filed custody papers. I was awarded pendente lite visitation of only every other weekend until trial. Her mother has moved in with a man she began dating a few months ago and she leaves my daughter at home alone with him while she is at school. She has a very unstable past (she has moved 4 times in 18 months, changed jobs 4 times in 18 months, had 2 different male roomates. I am currently married and have another child, a stable home and a stable job. When I was with her she would use drugs on occasion and I was recently told by her friend that she is still using cocaine. I am deeply concerned for the physical and emotional health of my daughter. She went from being at my house 5-7 days a week to not being able to see me at all. I have an attorney and we have a status hearing next month. Please give me any advice you can as to how I can win this case!

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My Answer:

Okay, so your case is one by which many people learn. You screwed up, which you only now realize, and as a result you have a huge uphill battle.

Your screw-up was out of ignorance. You can probably look back and realize that you should have filed for custody prior to January, and you would have had a slam-dunk case since you were the primary caretaker for a couple years.

But now, the more time that goes by, the worse your situation becomes because the mother is establishing herself as the primary caretaker with every passing month. Yet, you need to build a case and you need some time to do it. It's a Catch-22.

You said you have an attorney. This attorney should have at least 10 years experience in the county where the case is being heard. That way, you'll be sure that the attorney is familiar with the judge (i.e., will know what impresses or annoys the judge, or any bias involved) and that the attorney will have a sense of opposing counsel (i.e., reasonable or not).

Tell that attorney about the witness who has personal knowledge of the mother using cocaine. The attorney may be able to subpoena or depose this witness, and use that testimony to try to get a change of the temporary orders. At the very least, it may be enough to get court orders for both parties to be tested for drugs.

Outside of the attorney, you may wish to look into hiring a private investigator to effectively document the mother's instability (and possible drug use) you've outlined. Look on my Recommended Books page and purchase Child Custody A to Z, which was written by a private investigator. Turn over any evidence to your attorney.

Next month at your status hearing, you may wish to move the court to order a fast-track custody evaluation. This typically skips over serious psych testing, and instead involves a couple interviews and home visits. You'd want to ask the court to give this evaluator the ability to make immediate recommendations to the court, if the evaluator feels it's imperative (e.g., if the evaluator believes the mother is using illicit drugs).

It's up to YOU to build your case. Building a case requires a serious commitment to resources needed to put together credible evidence and witness testimony. Without that, you are rolling the dice, and you've already discovered how bad the outcome can be if you walk into court unprepared.

Because of the 1.5 hour distance between the two homes, it's not likely that there will be a 50/50 parenting schedule as an outcome in this case. It's just not feasible unless the parents live relatively close. So, one of you is going to walk away as having majority timeshare with the child.

I think that while you have an uphill battle, neither parent has a sure thing right now. Prepare your case, and pray for the best outcome.


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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