Child Custody Issues
Answers From The Expert
Child custody issues are often some of the most debated topics
when a couple divorces. Deciding where the children will live
and the amount of time spent with each parent needs to be determined. Yet,
this is something that most parents can't agree on, as outlined by the following
questions:
How do I make it legal if my son's
adoptive parents let him move back in with me?
Mary's Question: My cousins adopted my son years
ago. He wants to come home, and everybody is agreeing to it. What can I do to
make it legal so they are not liable for him in any way?
Brette's Answer: The only way is for you to adopt
him back. Good luck.
How is custody affected
if he's the adoptive parent?
Elizabeth's Question: I am my daughter's biological
mother. My soon to be ex-husband adopted my daughter two years ago after we were
married. I would like to sole custody of my daughter based upon the fact that my
ex always looked to me to make decisions and my daughter doesn't really have a
"parental" bond to him. My daughter is in counseling to help determine
whether or not it is in her best interest to continue a parental relationship
with him.
Brette's Answer: The fact that he adopted her has
no bearing on custody. Whether or not they have a bond and what kind of
relationship they have is important. It sounds like you should wait to see what
the counselor says. In most cases it is not a good idea to completely cut off
all contact between a parent and child, so it is likely visitation will be
something that is recommended. Can a
step-parent get custody rights?
Renee's Question: My husband and I are getting a
divorce. He has a 7 Year old son that I am very close with and take care of.
Even though we have not been married for very long, what would the chances of me
getting custody or at least joint custody? I am the one that takes care of him
and all of his school things and games and practices. I work at the school so I
have the same work hours as he has for school. Can a Step Parent get custody
rights?
Brette's Answer: The chance of you getting custody
is extremely unlikely. The chance of getting visitation is also very small, but
it depends on the situation. If he does not have another legal parent, it is
more possible than if there is a mother. Different states have different laws
about stepparent rights, so you would need to consult an attorney. The best
solution is for you to talk with your husband and explain how much you love his
son and try to work something out that would allow you to continue to be a
presence in his life.
We agreed to joint custody,
but now he says he's the primary parent.
Veronica's Question: My husband and I agreed to have
joint custody of our 9 year old son. My husband is now telling me that the
divorce is finalized and that he's the primary parent. I have no
recollection that it said that on the decree. Is there any way I can appeal this
decision? If he is lying, and the divorce is not finalized, what can I do?
Brette's Answer: You need to read the decree to
determine what it says. If you can't figure it out, you should pay for a
consultation with an attorney who can interpret it for you. If it does say he is
the primary parent, you need to go back to the papers you signed agreeing to the
divorce and check what they say. If the decree does not match what you agreed
to, you will need to go back to court to get this resolved. You should get an
attorney to help you with this. » Return to top
Topic: Sole versus Joint Custody
Ashley's Question: My baby is almost two months
old, and the father who is completely disabled in a wheel chair, is trying to get custody
based on false pretenses!!! I'm confused and need to know the difference
between sole and joint custody.
Brette's Answer: All states have sole
and joint custody arrangements. These terms can be confusing though.
There are two types of custody to be decided - legal and physical.
Legal custody refers to the parent who has decision making authority
for the child. This parent is the one who makes medical, legal, and
educational decisions about the child. Physical custody refers to
how the parents share time with the child.
You can have all kinds of
combinations of the two. For example, you can have a situation where
one parent has sole legal and physical custody. This means the other
parents isn't involved in decisions and never sees the child. You
can also have a situation where one parent has sole legal custody,
but the parents have joint physical custody. This means one parent
is making all the decisions, but they both spend time with the
child. You can also have joint legal and physical custody, where the
parents make decisions about the child together and share time with
the child. You might also have heard of shared or split custody,
which is usually the term used when the parents equally share time
with the child in a 50/50 split.
You can go to your state's family court and have custody
determined there. If the baby's father hasn't formally admitted
paternity of the baby, you would have to start with a paternity
proceeding. Until there's a legal acknowledgment (either an
admission by him or a judgment by the court) that he is the father,
he has no legal right to seek custody of your child. » Return
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Does joint custody
mean equal time with each parent?
Yvette's Question: I'm a stay at home mom with a six
month old daughter. My husband doesn't spend any time with the baby, but
yet he wants joint custody? Will the court grant this?
Brette's Answer: You need to understand that there
is a difference between joint legal custody and joint physical custody. Joint
legal custody describes your parenting relationship and in some ways is a way to
make the parent without physical custody feel better. It doesn't describe how
you share time, but instead means you are supposed to make decisions together.
Joint physical custody means you split time equally.
If your baby is breastfeeding, joint physical custody is
impossible. In most cases like this, the court will look who has
time to care for the child. Since he works and it sounds like you
don't, it's likely you would be the custodial parent. However, the
court will want to set up a visitation schedule that will allow your
husband plenty of time with your daughter. » Return
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Can I decide on the school district if I'm the custodial parent?
Julie's Question: I am the custodial parent and live 25 minutes from my ex. My daughter will be starting kindergarten in the fall. Can I put my daughter in the school of my choice (by my home)?
Brette's Answer: Yes. The only caveat I would have to that is if you have joint legal custody, then technically you need to make the decision about schools together. If there is a disagreement, you'll have to go back to court. Could I lose custody because my ex says that I'm crazy?
Catherine's Question: I am going through a custody battle with my ex husband. (we got divorced when my son who is 2yrs old). My ex thinks I am crazy, but I am not. My son is in a good school district, he has friends, siblings, and everything a kid wants. How can I prove that I am not crazy and that my son is fine where he is, and what does the courts look for in these types of cases?
Brette's Answer: Custody is decided based on what is in the best interest of the child. It is hard to prove you are not crazy, unless you really mean he is suggesting you are mentally ill - in that case, a psychological evaluation should clear it up. You can however prove that you provide a stable home, have a stable job, and have friend and community support systems. Keep a journal that details your daily life and the things you do with your son. Collect report cards, photos, scrapbooks, home movies, anything that shows your son having a happy life with you. Document problems that arise with your ex and disputes over visitation. Get an attorney. » Return
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How can I prove he's a drug-user and not a good parent?
Trish's Question: I am currently in a custody battle with my ex. He still uses and sells crack and heroin. But it's almost impossible to prove. He has supervised visits right now, and he barely comes, but in a month we have to go back to court and he wants to take my daughter for weekends. He has a criminal record involving drugs, and violence. What can I do to prove to he will harm my child mentally, physically and emotionally if he is given the chance.
Brette's Answer: Ask for a substance abuse evaluation as well as a mental health evaluation. Ask that a law guardian or guardian ad litem be assigned to the case. Line up your counselors or doctors to come in and testify about how well you're doing.
How do I file for custody if I don't
know where the father is?
Margarita's Question: I have a 14 year old daughter.
Her father and I broke up 12 years ago, and he has only attempted to see our
daughter once in all that time. I have no idea where he lives. I was told that I
need to file full custody of my child for many reasons. What are the chances of
getting this approved when I have no idea where he is?
Brette's Answer: No problem. You'll be required to
attempt to serve him somehow - last known address, etc. When that doesn't work,
then you will be able to serve him via publication in a newspaper. Good luck. » Return
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How often can my ex
take me back to court to change custody?
Jessica's Question: If I get sole custody of my 3
kids, how many times can my ex-husband take me to court to try to get custody?
Brette's Answer: There's no limit really. However,
if a judge feels he is bringing cases too often with no basis (as a form of
harassment), he could be penalized. » Return
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Can he get custody changed because I'm living with someone?
Crystal's Question: My divorce was final about 6 months ago, but we were separated for some time. I have custody of our 2 children and my ex is supposed to pay child support. However he does not pay much ($100 a month if I am lucky). I moved in with with my boyfriend because I was to the point of losing everything I had. My boyfriend and I would like to be engaged but I don't think its legal because he is not divorced yet. My ex keeps threatening me, saying that I need to write him a receipt for all the back child support he owes me or he is going to take me back to court because I am living with my boyfriend. He owes me 4 grand and I will NOT write him a receipt for that much. He is an alcoholic and has no chance of getting the kids, and has even told me he does not want them, its all about the money with him. HELP!
Brette's Answer: You need to take a deep breath and work through this with me. First of all, your ex does not have the authority to tell you who you can or cannot live with. That is your decision and he can do nothing about it. The only time it would be a concern is if your boyfriend was somehow presenting a danger or a bad influence for your children. That does not sound like the case. Stop listening to your ex.
Secondly, if your ex is behind on child support, go back to court on a violation and get a judgment! He is legally required to pay you this money. By not collecting it you are making life hard for your children.
You should never, ever give a receipt for money that has not been paid to you. Your ex can do nothing to you, so stop being intimidated by him.
As for getting engaged, it is not a legal situation. You and your boyfriend can make any promises you want to each other. You cannot get married until he is divorced. Getting engaged is not going to change your financial situation, so why rush into it? » Return
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Could I lose custody because my boyfriend got a DWI?
Monica's Question: My children have lived with me for two years and I have residential custody. My fiancé made a mistake and got a DWI and he will be on probation. If my ex-husband finds out that my fiancé is on probation do you think there is a chance that I could lose my custody?
Brette's Answer: I think that you need to be certain your kids are not in the car with him until this blows over. How would your ex find out about the DWI? If he doesn't find out, it isn't a problem. If he does however, he could certainly try for custody. If there are no other problems and you are willing to stipulate that your fiancé will not drive them, that it would most likely not be a problem.
Can he get custody because I had an affair?
Question: My husband and I are separated, and I am 10 weeks pregnant. He is threatening to take my baby if 1) I file for divorce, and 2) because I had an affair. If I am a fit mother, can he do this? I am so scared.
Brette's Answer: Don't listen to him! Having an affair does not make you an unfit mother and has nothing to do with custody. You're allowed to file for divorce! Sounds like you need some support. Is there a friend you can lean on through this? Good luck.
Topic:
Custody possibilities when parents live in two states
Tonya's Question: My husband and I are in the
beginning stages of divorce. He is in the military and lives in on base, while
the children and I live in another state. What are some shared custody options?
Brette's Answer: When it comes to custody, anything
you can work out is acceptable. I would recommend that you and your husband have
a long phone conversation and try to come to an agreement. Probably in your
case, you will need to work around his responsibilities. It sounds like it would
make most sense for you to have physical custody of the children. You can share
legal custody (decision-making responsibilities) or you can be the one with that
sole responsibility. It's important that your children spend time with their father,
but this may be difficult to achieve based on his job. Try to work out times he
can come and see them. Arrange for them to have phone, email, and snail mail
contact with him while he is away. The key is to respect each other as parents,
make sure the children know you are parenting together, and make sure they see
him as much as possible. » Return
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Would a judge allow
the children to be split up?
Claudia's Question: In a case where there are three
children involved (ages 6, 11, and 13), would it be possible for the father to
live in one state and take custody of the two older children, and the mother to
reside in another state with the youngest one? If this is an agreement that both
parties came to (though the older children don't want to go with their father),
would a judge allow the children to be split up the children? It would seem to
be that the courts would frown upon splitting up the children, unless there were
unusual circumstances.
Brette's Answer: Courts prefer to keep siblings
together whenever possible. Sometimes though it simply isn't possible. The court
would look at the entire situation and decide whether this was in the best
interest of the children. The opinion of the older children would matter, but
would not be decisive. Of importance would be what the visitation plan is and
how the parents plan to maintain contact between the siblings. » Return
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Can I get a different judge
for our custody case?
April's Question: I am in a child custody battle
with my ex, and it seems as if my attorney just wants me to throw in the towel.
The judge that we have is the same one that signed our divorce. My attorney
thinks that the judge is going to look at our evaluation and that's it. The
evaluator states that he was not able to make a final decision based on his
evaluation, but the kids are already comfortable in the town that they are in
now so why move them. I have been the primary care giver for the kids whole
lives. Would it be a good idea to hire a new attorney? Would it hurt my case? Is
there any way I can request a new judge?
Brette's Answer: You can fire your attorney and
hire a new one, but you do have to get the judge's permission to do that (it's
usually not a problem unless it will significantly delay the case). You can't
ask for a new judge. The thing you need to understand about your custody case is
the court likes to keep the status quo if it is working. What you need to do is
show the judge that the current situation is not what is best for the children.
Your attorney could seek another evaluation and call that evaluator to testify.
Deciding custody without
going to court
April's Question: Must the divorce
address custody issues when a minor child is involved, or can
custody be handled separately? For example, can the divorcing
parties come up with there own signed agreement? In this case,
would any court appearances be necessary?
Brette's Answer: Custody can be handled
before the divorce is begun as a separate issue, but if it is not
resolved by the time the divorce is initiated, it will become one of
the issues in the divorce.
You most definitely can determine custody yourself, however, you
always need a court order to make it official. You and your spouse
can go to mediation and create an agreement there. You can also go
file a custody case and then appear in court and tell the judge what
you have worked out. It always up to the court to approve a
settlement, but the court almost always will approve it as long as
it is reasonable. » Return
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How can I prevent my
husband from taking the kids out of the country?
Naurin's Question: I have been married to my husband
for 7years and we are going through hard times. I fear that he might want
to take my kids and flee the country. How can I prevent this?
Brette's Answer: If you are concerned he would try
to take the children out of the country, you can first get an order from family
court directing him not to do so. Secondly, if your children have passports, put
them in a bank safe deposit box. If they do not have passports, apply for them
and then do the same thing with them. » Return
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Does he have the right to
talk to the daycare if I have custody?
Brandi's Question: I just recently filed for custody
of my twins. Their father has hardly made any time for them since they
were born 2 years ago. He has talked to the daycare that I arranged for the
twins to be in, but the daycare did not said anything to me. Is that right?
Brette's Answer: It's your responsibility to talk
with your daycare providers and make sure they understand who is the custodial
parent and who is permitted to pick the children up and communicate with the
teachers. If your order gives him access to records, then there was nothing
inappropriate. » Return
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Topic: Who gets to claim the children
for taxes?
Denise's Question: When I was divorced, my papers
stated joint custody with claiming my son every other year. Custody was modified
later so that I have physical custody, but the tax part wasn't addressed.
I just assumed that there was no way he could claim our son because he does not
live with him. Now my ex plans on claiming him this year. What can I do?
Brette's Answer: If your papers still say you will
alternate years claiming your son for tax purposes, that's what you have to do.
It doesn't really have anything to do with how custody is arranged. Your alternative is to go back to your attorney and get it changed.
Related Articles:
What Is Custody?
Preparing for
Child Custody Battles
Also see:
More questions and answers
Ask the Legal
Expert a question
Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
For more information about Brette, see www.BretteSember.com.
This column provides general information about
the various aspects of divorce. It is not intended to take
the place of legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your
situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim
any liability from any claim arising from any information contained
in this column. This column is not a substitute for legal advice.
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