How is Custody DeterminedHow is custody determined in a divorce case? If you are facing a possible custody battle, you need to realize that the judge will consider the best interest of the child above all the other issues. You can find out the specific factors considered by looking up the child custody laws for your state. You can also learn more about how to get child custody by reading the following questions and answers:
Is custody affected by who files for divorce first? Stephanie's Question: Three weeks ago my husband decided he was not happy in our marriage and wants a divorce. Last weekend he moved in with someone he had been seeing. We have a 3 1/2 year old son, does it matter who files for the divorce due to custody issues? Brette's Answer: Who files for divorce has no impact on custody. Custody is decided based on the best interests of the child. However, I would say there is an advantage to the person who files first simply because that person is asking rather than defending. Now, that being said, if one spouse has done egregious things that led to the divorce, it's possible a judge would be swayed by that when considering custody. You should talk to an attorney about your situation. You may also want to consider child custody mediation which will allow the two of you to reach an agreement about custody and other aspects of the divorce based on what is best for your entire family. » Return to top How does the judge decide who is the better parent? Elena's Question: My husband and I are both "Church people", and don't use drugs or alcohol. I'm a stay at home mom, and my kids love my husband very much. How would the judge determine who is the better parent for the children to live with? Brette's Answer: The court looks at who has been the primary parent, the amount of time the parents have spent with the children, their living situations, and all the circumstances to determine what would be best for the children. What can I do if we can't reach a custody agreement? Cristina's Question: Every time we have tried to come to an agreement about custody of our child, he always ends up insulting me and we don't get anywhere. What can I to do to get a custody agreement worked out? Brette's Answer: If you can't reach agreement, you can either go to a mediator who can help you reach an agreement (without insults) or hire an attorney. You could also file for custody on your own without an attorney, but if you can afford a mediator or an attorney I would highly recommend it. » Return to questions How can I prepare myself for a custody battle? Misty's Question: My husband and I are going through a nasty divorce. We have 2 small children and he wants full custody of them. He has never taken them to the doctor, stayed home from work when they are sick, etc.. Now he is lying to the court system trying to say that I am unfit. I am so scared that they will give him the kids. I know that this would not be in the best interest for them. What can I do? Brette's Answer: Getting an attorney is the first step. Start to keep a calendar and a journal documenting everything you do. Try to the best of your recollection to recreate the past six months or year as well, writing down everything you've done and everything he's done. You need to be prepared to show the court that you are the primary caretaker of the children and that you are able to parent on your own. Make a list of all the things you do for your son each day. Prepare a photo album of photos of you with your son or son happy in your care. Anything you have prepared yourself, such a journal, photos, or log would be admissible in court. Other documents, such as school records or bank records must be authenticated, so you will need to talk to the court clerk ASAP about subpoenas if you want to do something like that. Having a place to live and a job are important. Making arrangements for school and child care are also important. Demonstrate that you have community ties through church, neighborhood, friends, etc. Be prepared to show why he is not qualified to have custody of the children. Find people who will testify about problems with his parenting and people who will testify about your skills as a parent. Get an attorney and discuss this with him or her. » Return to questions Dana's Question: Does the judge always rule with the recommendations of the court appointed evaluator? Brette's Answer: You need to consult an attorney in your state for state specifics, however an evaluation generally carries a lot of weight with a judge. » Return to top How is custody affected if he hasn't let me see our son for 6 months? Jo's Question: The father of my 7 1/2 month old son has not allowed me to see our son for the last six months I finally got a suit effecting parent child relationship filed. If he's had him that long and I haven't even been able to see him, will this make it where he automatically gets custody? Brette's Answer: Refusing to allow a child to see the other parent is parental alienation and can have an adverse effect on custody, however there's now way to know for sure without knowing all the details of your situation. I would recommend hiring an attorney to help you. Can my ex keep our son for 6 months without getting full custody? Nisha's Question: My ex and I are trying to work out an agreement were he can keep my son for 6 months out of the year, but I don't want to give him full custody of our son. What can I do to ensure our son is back with me at the end of the 6th month? Brette's Answer: This would be a shared custody arrangement. If he doesn't return your son, you take him back to court for violating the order. Can he get custody if he's only seen our child once? Janet's Question: My daughter is 2 years of age, and her father is asking for full custody. He has been paying child support, but only seen her once in her life at age 1. She has no idea really who he is. I never thought it would come to this so I never filed custody papers. PLEASE tell me what are my chances here. Brette's Answer: It is unlikely he would get custody if he has no relationship with her. What will likely happen however is that he will be given visitation and they will develop a relationship. » Return to questions Can he get custody if he takes care of the kids? Amy's Question: A little over two months ago, the children and I moved out. Sometimes I work days and sometimes nights and my husband takes care of the kids whenever I work. Some weeks this means that he has the kids more days than I do. I'm so afraid that because of this he will try to get custody. Can he be awarded custody if he sees the kids half the time (sometimes more)? Brette's Answer: Custody will be determined by the court in the best interest of the children. The problem is that the court would rather the children be with a parent than a day care provider most of the time. It sounds like you have developed a joint custody situation and are sharing time in a way that works out for both of you. Unless there is some evidence that shows he is a much better parent than you, I see no reason a court would want to change that. If the status quo is working, the court likes to stick with it. Will the fact that I don't have a job affect custody? Stacey's Question: The day I went to take the papers for a divorce, I lost my job due to production quota. That scared me because I thought without a job I would not get my child. But the mental abuse toward me and my daughter are getting worse everyday, so I am going on with the divorce. I recently paid all my bills off so I could stay home awhile with my daughter. Will the fact that I don't have a job hurt me in court? Brette's Answer: Custody is not determined based on who has a job and who doesn't. It is decided by looking at what is in the child's best interest. Children usually remain in the residential custody of the primary caretaker, unless there are circumstances that make that a bad choice. If you provide a better home and environment and relationship with your child, you will get custody. » Return to questions Will it affect custody if I work as an exotic dancer? Jennifer's Question: I am an exotic dancer, go to school, and take care of my children. Will my job affect my custody of my children? Brette's Answer: It shouldn't unless your job somehow impacts your kids - putting them in inappropriate situations, with people who are bad influences, etc. How will if affect custody if I live with my parents? Jo Ana's Question: My husband and I moved in with my parents and now I am filing for divorce. If he moves out and gets his own place and I still live with my parents, will that effect my chances of custody? My daughter has her own room and I have mine. Brette's Answer: The only effect is that the court will need to have information about your parents to make sure it is a good environment. In fact, sometimes this kind of situation is better, since there is added support for the child. » Return to questions Will my living arrangements affect the custody decision? Michelle's Question: If I move out with our 2 1/2 year old son, is it better for me, for custody purposes, to live with a friend while getting back on my feet or moving directly into a rented house for a more permanent residence? Brette's Answer: Permanency is always a good thing when it comes to custody, however sometimes you have to do what is possible for you at the time. It is important to appear stable. Anyone you live with will be important - any problems with that person will hurt your case. Will it affect the custody decision if I live with my boyfriend? Alex's Question: My child is 9 months old and I am currently going though a child visitation/custody case with the father. I am now dating someone else and have been for a year. Will it be okay if I start to live with this person or will it affect the courts opinion of me? Brette's Answer: Whenever you live with someone it becomes a consideration in custody because that person is part of the child's environment. Will an affair impact who gets custody? Janine's Question: My daughter is going through a divorce. She has filed first and now I have discovered she is having an affair during this process and before. My son-in-law has not. And their reason for divorce is mainly my daughter's doing. She is under the misconception that her affair will not matter in custody because she has been the main provider. Am I correct that she could very possibly loose her daughter? Brette's Answer: Custody is decided based on what is in the best interest of the children by considering the parents' lifestyles, residence, schedule, parenting skills, past history, and abilities. An affair would only matter if she was placing her child in situations with the man that are unsafe, not beneficial or otherwise concerning to the court. That being said, it is true some judges form a negative opinion of a parent who cheats so it can paint her as the bad guy in the situation. She needs to focus on her child and the situation she is providing. Marie's Question: While in the process separating from my husband I had an brief affair. My husband agreed to go to counseling for anger and abuse, and I told him about my affair so we could work on our marriage. Now he is threatening me with taking my son due to "infidelity" even though he has cheated on me, hit me and emotionally abuses me. What are my rights? Am I allowed to take my son out of state to family or friends? Brette's Answer: Your affair should have no impact on custody. Custody is based on the best interests of the children and is not related to the grounds for divorce or infidelity, unless it in some way impacted your child. For example, if the person you are living with is a danger or bad influence for the children, then it is a concern. If there is no current custody order you can take your child out of state, however your husband can then file papers seeking to have you return. You need to tread carefully. You should talk to an attorney so that you can discuss the factors that will impact custody in your case. » Return to top Will it affect custody if I get pregnant by another man? Anne's Question: My husband and I have been separated for about a year now. We are in the middle of a divorce and can't decide on child custody for my son, since my husband was very abusive during our relationship. I'm currently dating someone else and just found out I'm pregnant, not by my legal husband. Can this effect my getting custody of my son? Brette's Answer: No. Custody is decided by what is in the best interest of the child. This requires examining all of the circumstances. If you plan to live with your new partner, he would be a factor. If he is a good person, it shouldn't be a problem. Can he get full custody because I'm a lesbian? Lukeshia's Question: Can the father get full custody if I am a lesbian and I have joint custody. And know he wants full custody. Brette's Answer: No! Sexual orientation has no impact on custody! Good luck. Will he get custody just because he's keeping the house? Linda's Question: I am in the process of a divorce. We have a 3 1/2 year old son. I am the only parent that prepares meals, cleans the house and does the majority of cuddling and correcting. I don't doubt he loves our son, but I do not believe he could do more than a couple hours outing on a Saturday. He owns our townhouse and feels the court will give him residency because the title to the house is in his name and it would be best for our son. He has cautioned me to rethink divorce since I could lose custody of my son. Is this true? Brette's Answer: Stop listening to your husband and talk to an attorney. If the home was purchased during the marriage it is marital property and belongs to both of you. Custody is not awarded based on whose name is on the deed of a house! Custody is determined by considering what is in the best interest of the child by looking at all of the circumstances. You need to start a journal of everything you do and he does. Put together evidence that will support your point of view. It sounds to me as if you would not object to a reasonable visitation plan and you just need to justify being the residential parent. It is true that courts see some benefit to keeping children in the same home for stability (custody first, residency second), but that certainly isn't always the case. You just need to show you are the primary caretaker. » Return to questions Can I get physical custody if the kids live with me? Marci's Question: I have a 8 and 5 year old with my husband of 10 years. He has cheated throughout our marriage and is currently in a relationship with someone else. I want sole physical custody because he is working in Michigan and I live in Florida with the kids. What do you think my chances are? Brette's Answer: Your chances are good. Custody is decided based on what is in the best interest of the child. This is determined by looking at all the circumstances in the case, but the adultery has nothing to do with this. The facts that you live in separate states and the kids currently are with you means you have the edge. Since you have been the primary caretaker, the court is likely to continue that. However, it is almost always in the best interest of a child to have time with the other parent, so you do need to think about how to create a reasonable visitation plan. Will I be able to retain custody once the baby is born? Elaine's Question: When I found out I was pregnant, we married after knowing one another briefly. Two months later, I am filing for divorce. Will I be able to retain custody once the baby is born? Brette's Answer: Custody has nothing to do with how long you knew each other or how long you were married. It is decided based on what is in the child's best interest. That said, it is rare for custody to be taken from a mother after birth. You should start thinking about what a reasonable visitation plan would be that will allow your child time to get to know and develop a relationship with his father. Can I get full custody and make sure there's no over-night visitation? Steph's Question: I'm a breastfeeding mother of a 6 month old. If my son's father isn't abusive and doesn't do drugs, but isn't a good dad and doesn't put any effort into seeing or talking to his son, is there any way for me to have complete custody with out him getting granted visitation in the divorce? If he does get visitation can it be mandatory that I'm there and there are no over-nights? Brette's Answer: Custody and visitation are decided based on what is in the child's best interest. Your problems with the father are separate from his potential relationship with the child. In most cases, it is best for the child to have strong relationships with both parents. Often fathers of babies need some time to develop relationships with them. If there is nothing negative about your ex, there's no reason he can't have visitation. I think you need to take a deep breath and remind yourself that he loves your son and wants and deserves to be part of his life. What you have to realize is that your child isn't going to be a baby forever. He'll be 5 and want a dad to throw a baseball with or 10 and want a dad to go to his soccer game, etc. Your son deserves to have a father in his life. It's really common for moms of infants to feel very protective - you know that you know how to care for him and doubt that the dad does. You need to decide to make visitation happen for your son's benefit. It should start slowly - no one is going to suggest a breastfeeding infant go on overnights with a father he is unfamiliar with. You need to gradually let them develop a relationship - it's your job to encourage it because that is what is best for your child. Take it slowly but try to develop a cooperative relationship that will benefit your son for the rest of his life. Good luck. » Return to questions Can I get custody if he doesn't take care of our daughter properly? Kristy's Question: I have a 3 year old daughter with my ex. He only pays child support if he thinks he is going to jail and he is always lying to the court and making excuses as to why he can't pay. Every time she goes to his house I find a new scar, a burn from a cigarette, or she is sick. He is never there when I drop her off or pick her up, and he and his grandparents don't watch her closely enough, give her a bath, or change her clothes while she is there. If I go to court to get custody, can I win? Brette's Answer: The things you are seeing are disturbing. You should photograph the injuries and keep a log. I can't say what will happen, but it sounds compelling. Good luck. Can the kids be with me more than their Dad if we have joint custody? Rosetta's Question: Is it possible to get joint custody that will give me more time with the kids than my husband? He is a good dad but has a bad temper that scares even the kids sometimes. Brette's Answer: There are two kinds of joint custody. Joint legal custody refers to making decisions together. Joint physical custody means sharing time equally. Most people just say they have joint custody (meaning legal) and then create a parenting plan that divides the time up in a way that works for them. At what age can a child decide where to live? Nish's Question: How old does a child have to be to be able to decide which parent to live with? Brette's Answer: A child never gets to decide custody. The decision is up to the court and once a child reaches a certain age, the court begins to take his or her feelings into consideration. The older the child, the more seriously their preferences will be taken. Usually once a child is over 13 he or she has a large voice in the process. » Return to questions Topic: Preference of the child and custody Pam's Question: I have a 15 and 10 year old sons. At what age can the children decide where they live instead of going through a custody battle? Brette's Answer: Children don't get to decide - that puts too much pressure on them. However, once a child has reached a certain age (and this can differ from state to state), the court takes the child's opinion into consideration. The older the child is, the more importance his or her opinion is going to have. Your 15 year old's opinion will be important. Your 10 yr old's will be considered. However, the court can always rule against the child's opinion, if the court finds living with that parent is not in the child's best interest. Probably the best thing you can do is sit down with your children and your ex and try to work something out yourselves. If the kids feel very strongly, can you work out an agreement that takes that into consideration? Go see a mediator if you can't get anywhere. Reaching a settlement which is then just approved by the court is better for everyone as opposed to going through a trial. (Read more about Split Custody Arrangements) Does a 17 year old teen mom have to go live with her dad? Tracy's Question: Our daughter is 17 and has a 4 month old daughter. In our divorce, she and her baby are supposed to go live with him which is over 2,000 miles away. This is the only place our daughter knows, and he has only seen the baby once when she was just two weeks old. Her child will only be 8 months old when she moves out there. Our daughter is dreading this. What can I do? Brette's Answer: Your daughter is old enough to tell the court what she wants and her opinion will likely be decisive in this case. Do I need a lawyer if my child is old enough to decide where to live? Jennifer's Question: If my daughter is of age to have a say in which parent she wants to live with, would I still need a lawyer? Brette's Answer: It's always a good idea to have an attorney if you can afford it, particularly if the other party has one. A child's opinion is never completely decisive - it is always up to the court. » Return to top Can the child take the stand if we have to go to court? Rosa's Question: I have custody of my ten year old son. My son doesn't want any contact with his father because of the verbal abuse and infrequent visitation. If we go to court, can he take the stand to tell his side? Brette's Answer: It is likely the judge would talk to your son in chambers with a court reporter and the Law Guardian present. The transcript would be sealed so that the child has privacy and neither parent can access it. » Return to top Will his Dad know what he tells the judge? Christine's Question: My ex and I share custody of our 9 year old son. My son has told me that his Dad has drinking 2 bottles of crown royal a day, and I feel that my son shouldn't be exposed to this. My ex was ordered not to drink when we first divorced, and I'm going to try and get full custody of my son because of the alcoholism that's going on now. I'm worried that if my son testifies about his Dad's drinking, that his Dad will blame him and get mad. What can I do? Brette's Answer: Your son would never testify in open court and would only talk to the judge in chambers. In most states, this is sealed. You could ask that your ex be ordered to attend an alcohol treatment program. Can he use my disability against me to gain custody? Christine's Question: My husband and I are one step away from divorce. I have a great career, great background, and can fully support my two small children. I make more money than my husband and I get disability money for partial loss of use of my left arm. I'm afraid that he will use my disability against me for custody of my children. Can he use this against me? Brette's Answer: Custody is decided based upon the best interest of the children. If you are able to adequately care for your children, and can have doctors or therapists testify about that (or have people to help you if you aren't able to) should your husband raise the issue, it's nothing to be concerned about. There are many disabled parents raising children alone and it's only an issue if you can't adequately care for them. » Return to questions Can he use my disability against me if I need basic help sometimes? Tiffany's Question: My husband and I have have a five month old. We are heading towards divorce but neither of us have filed yet. I recently have filed for disability due to severe arthritis. In my paper work I did have to state that I do need help on some days caring for my daughter, some times with doing laundry and basic house hold chores, getting dressed, and stuff like that. Not all the time though. But I cannot work because I have difficult days sometimes. Can my husband use this against me when it comes down to custody of my daughter? Brette's Answer: You need to present a plan for how your daughter will be cared for on days you are having a flare. I think the problem may be that flares are unpredictable (I have a daughter and husband with RA so I am familiar with the disease) and how will you manage if you suddenly are flaring and you're alone with her. If you can present a plan that shows you have adequate assistance available it will help you. Can he use my history of depression against me? Casey's Question: Can my husband get full custody if he is living with his parents, never at home with the kids because of work, is mentally and verbally abusive, has a 20 year old girlfriend living with them, and also abuses cocaine? I have a past history of depression and was hospitalized over a year ago and he is trying to use this against me in court. Brette's Answer: The fact that he lives at home and with his girlfriend is not necessarily a strike against him - it depends on what kind of environment it is and what the people are like. His drug abuse is a big concern. If he is mentally and physically abusive to your child that is a major problem. Your history of depression is a concern as well. You need to get your doctor to testify as to your current condition and any ongoing treatment. The court is going to take of all the circumstances into consideration and make a decision about what is in the best interests of your child. Your job is to prove your case - show he is a danger to the child, has no time for him/her and does not provide a good environment while also showing the court that you provide a stable home. » Return to questions Will my bi-polar, job history, and affairs affect who gets custody?? Shelbie's Question: My husband and I are getting a divorce due to mistrust and constant arguing. I have cheated more than once and have been caught. We have decided to try month on month off custody. He lives in WA and I want to go to Texas and try for full custody. Will my bi-polar, job history, cheating come into effect here? I just really want to screw him over because he told me he wouldn't let me take MY kids to Texas because he'd have to pay to fly them back and forth. Brette's Answer: I think you're approaching this with the wrong attitude. Custody is about what is best for the children. The court makes the decision based on what is in their best interest. Your goal should be to create a plan that benefits them, not that "screws over" your ex. Revenge and custody do not go together. If you go into this with that attitude I can guarantee you the judge and/or Law Guardian will be aware of it and will be detrimental to you. Being bi-polar is certainly a factor, but if it is well-controlled it should not be a problem. Cheating is not an issue, unless it has directly impacted the children. Your job history is of interest if there are problems there that impact your ability to parent. He threatens to take my son if we ever get divorce. Stephanie's Question: I am currently married and the mother of a 2 year old son. My husband threatens to take my son away from me if we ever divorce. He doesn't do anything with him... no diaper change, no bath... maybe play every now and again if my son is not "whiney". My son is my life and he is very attached to me. Can you please give me some advice on what I can do to keep my son if it comes to a divorce? Brette's Answer: Since you are the primary caretaker, it is highly unlikely your husband would be able to get custody of your son. If you are concerned, you should start to keep a journal and document how much time he spends with your son and the times he rejects the child. Your goal is to be able to offer proof that he is not a very involved parent. This is evidence you could use should you ever have to face a custody case. » Return to questions Can he get custody because me and the kids moved out? Nadine's Question: My husband and I have been split for a year, and I left because he didn't spend time with the kids and ran up huge debts. He just got a lawyer, and now he says that he will take away the kids and all the belongings we have because I left the house with the kids. While we were separated, we both met other people and I am now 10 weeks pregnant. Now he says that just because of that he can take the kids. I have someone to represent me but have not heard anything from his attorney as yet. Can he do this and take the kids away? Brette's Answer: You need to set up an appointment with your new attorney and go in and have a talk. Your ex is not a legal expert, so don't believe a word of what he says. You need to get your information from your own attorney and stop listening to him. He's trying to scare you. Don't let it work. Custody is determined on what is in the best interests of the children. The court will look at all of the circumstances involved. Topic: Will the judge's bias towards men affect my case? GG's Question: What if I am unhappy with our current Judge because he has shown a bias opinion towards men? He has taken custody away from many mothers and this scares me, being that this is what we are going to trial for in 2 weeks. I have been a stay-at-home mom for 14 years and my husband is fighting for custody. What are the chances of the Judges personal feelings influencing this case? Brette's Answer: It's unlikely you're going to get far with your complaint about the judge. If you are concerned about the possible outcome of the case, I would suggest you try mediation, so that you and your spouse can work out a custody arrangement yourselves without a judge making decisions for you. » Return to top Will he get custody just because I'm in the military? Jacque's Question: I am the primary caregiver for our 18 month old twins. I carry them on my medical insurance, and support them financially pretty much by myself. I am in the military, and my husband has said that he will fight me for custody and that he thinks he will win since I am military. Please help! Brette's Answer: The fact that you are in the military has no impact on your ability to be a good parent. However, should you be deployed, he would most likely be able to get custody while you are gone. Topic: Military deployment and custody Kelly's Question: I am in the military and in the middle of a divorce. I want full custody of my 2 children. Do you think that the fact that I can deploy every year can affect me getting my kids? Brette's Answer: Custody is determined by looking at the entire situation and deciding what is best for the child. If you want custody and may have to deploy, you should come up with a solid plan for who would care for your child while you are away. If possible, you and your spouse could agree that he would care for your child should this happen. » Return to top Will I get custody if their father is in jail? Denise's Question: If a person goes to jail and the other person files for a divorce does the person filing for a divorce automatically get custody over any children they have together? Brette's Answer: Yes, it's pretty automatic if the other parent is in jail. How is custody affected if he's been convicted of a crime? Tasha's Question: I am going through a divorce. If my husband has a criminal record, how would this effect a custody battle? Brette's Answer: Criminal records and convictions always have an impact on custody. I can't tell you what the result will be because custody is decided by looking at all of the factors and a decision is made based on what is best for the child. A parent with a record is at a disadvantage. » Return to top Can he get custody if he's abusive to me and the kids? Mary's Question: I have always been a stay at home mom, and am currently seeking a divorce. My husband has been mentally and physically abusing me for years and recently became physically abusive to my youngest daughter. I never reported the physical abuse to the police because I was afraid of what would happen. What kind of chance do I have as far as custody of the children? Brette's Answer: First, you need to locate family and friends who can testify about the abuse and the fact that you have been the sole caretaker. You also need to report the abuse of your daughter and have it investigated. From what you've said, it is doubtful he would be able to get custody if you can prove the abuse. You need a good lawyer who can present a good case for you. » Return to top Can I get custody if he's violent and threatening? Lorraine's Question: My ex and I have a 1 year old together. He hasn't helped out financially even though I ask him to buy stuff for our daughter (which he refuses to do). He's a violent and threatening man. For example, one time he locked her in the truck with the windows closed while he started a scene at my house. We all tried to get him to give her to me and told him she could suffocate, but he didn't care. He was screaming and punching the truck, which was making her nervous. We told him to stop and he said she's his daughter and he does what he wants. Do you think with 7-8 testimonials about his crazy behavior and all the times I've had to call the cops on him that I can get the full custody? I don't care if I don't get any child support. Brette's Answer: If it is true that he locked your child in a truck, you need to call social services or family and children's services (whatever it is called in your state) and report him. That qualifies as abuse. You need to get everyone who saw that incident to come to court for your custody hearing and testify. If this in fact happened, there is no question that you will get custody. I would also tell you that if you want financial support, you need to file for child support. Stop asking him to buy things. It just causes conflict. Good luck. » Return to top Is joint physical custody possible if he's an alcoholic? Amy's Question: My husband is a severe alcoholic who has admitted to drug use in the last few months. He wants a joint physical custody arrangement in which the kids live 2 months at a time with each parent. He as a Child Protective Services founded report against him, 2 DUI's, and 6 police department domestic violence reports against him in the last three years. What can I do? Brette's Answer: The documentation you have is compelling evidence that your husband should not have custody and I don't know why you you would agree to allow him to have them 2 months at a time. You need to have sole custody of these children and if he wants visitation, I would want it to be supervised, at least until he completes a drug and alcohol rehabilitation program. Just present the court with your facts. It would be even easier if you could get him to agree to your plan. If not, you have adequate evidence to convince a judge. » Return to top How can I prove that he's an alcoholic? Jane's Question: My husband is a severe alcoholic. While drinking on average 10-14 alcoholic beverages each night, he has never had a DUI, and he manages to hold on to a job. He drinks alone, and he keeps the problem well hidden, never the less, he is a neglectful parent and I believe my child is in danger when alone with him. I want full custody of our daughter because I feel that I cannot trust him with her. He has driven with her in the past when he has been under the influence. Can you give me some ideas on what the court will want to see to prove that he has a terrible drinking problem.? Brette's Answer: You could create a journal in which you document how many drinks he has each day and the things he does or says. You could set up a video camera to record his behavior. You could collect receipts from the liquor store. You could take photos of him passed out surrounded by bottles as well if that's possible. You could request an alcohol evaluation be done once you have a case in progress. If the court won't order that, you can have other people testify about his behavior and drinking problem. » Return to top Topic: Can he get custody because of my past mistakes? Krista's Question: My husband is upset that I am the one who left and won't come to an agreement on custody of our son. Since we've been split, he has repeatedly called Child Protective Services on me. Unfortunately, I did fail one drug test, but I took a 10 week class and had the charges dismissed. My ex is no angel either. Since we split, he as had a DWI, he works two full-time jobs, has a pregnant girlfriend, and doesn't help with any of the expenses for our son. I have an attorney, but my husband still says that he will arrange it where I will never see my son again. Do I have any chance of getting custody since I messed up that one time? Brette's Answer: I'm glad to hear you have an attorney. As he or she will probably reassure you, it sounds like you're doing all the right things. Everyone makes mistakes, and what the court is interested in is determining who can best care for the child. It sounds like you are that person. Don't let your ex intimidate you. Getting an attorney was a smart thing to do. Try to work with your attorney to put together evidence showing all the ways in which you are a good mother. Keep a journal and document everything that happens. » Return to top Topic: Establishing custody after the divorce Cristine's Question: I let my ex have physical custody of the kids during our separation and this was a huge mistake. Since our divorce, he has moved 5 times, lost 6 jobs, and my kids have changed schools 5 times. There is no legal custody papers at this time. I pay child support voluntarily, the children's medical insurance, and buy them clothes and anything else they need. I recently found out that their father is drinking a lot, and my son has found his drugs. What chances do I have to get legal custody of my children? He won't let me see my children on a regular basis, and now I can't even talk to them. How do I prove that I'm a better parent if I have been denied the right to be involved in my children's lives? How do I prove that he is drinking doing drugs? What legal rights do I have to just go and pick them up? Brette's Answer: An attorney will be able to help you work through these questions. In general though, you need to gather evidence. You need photos and people who are willing testify about what they know or have seen. It is also helpful to keep a journal where you detail everything that happens and a calendar that shows when your scheduled visitation was and when it was denied. Your own testimony will be important. If he is denying you visitation, you have a very good case. You also need to present evidence that shows you are a good parent and can provide and care for your children. You cannot go pick your children up unless it is your scheduled time, however an attorney can help you go to court and seek an emergency temporary order of custody. » Return to top Copyright © WomansDivorce.com. All rights reserved.
Related Articles: 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.
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. Divorce
Process / Children
and Divorce/ Emotions
and Divorce Home /
Divorce
Guide / State
Resources / Divorce FAQS
|
For more information about Brette, see 