Sole Custody IssuesIt's tempting to request sole custody rights, especially if there are extreme bitter feelings towards your ex. But before you head off for a long and unpleasant custody battle, you need to understand how and why such a custody arrangement is reached. To start off, you first need to realize that there are two different types of sole custody. Sole Legal Custody: One parent has the right and responsibility to make major decisions regarding the child’s welfare, including matters of education, medical care and emotional, moral and religious development. Sole Physical Custody: The child resides with and under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child. Given these two variables, custody can be arranged in a number of ways. One parent may be awarded full legal and physical sole custody rights. One parent may have legal sole custody rights, but share physical custody through a visitation agreement. One parent may have sole physical custody, but the other parent may share in decisions about the child. It is rare for the courts to award sole physical and legal custody to a parent, unless the court deems that one parent is unfit. Examples of what might make a parent unfit include a history of violence, mental instability, drug or alcohol abuse, or neglect of the child. Even then, visitation rights might be granted under a supervised visitation agreement. To help you further understand some of the issues that come up with such an arrangement, read over the following commonly asked questions answered by the legal expert:
What is the difference between sole custody and the termination of parental rights? Cat's Question: My son is now 3 yrs old and his biological father has just now decided he wants to start visitation with him. My son's biological father is NOT indicated on the birth certificate and has not participated in my son's life or ever paid a dime of child support. What steps would I need to take to get sole legal custody of my child? Would my boyfriend have any rights in the say of the "best interest of the child" to the courts as he is identified by my son as daddy? Also, what is the difference between termination of parental rights and sole custody physical and legal? Brette's Answer: Most likely he will be entitled to some visitation since they have a right to know each other. It is usually in the child's best interest to know his father. Your son can continue to have a loving relationship with your boyfriend, however he deserves the opportunity to know the man who helped create him. You can ask for and will probably get sole legal custody- all decision making power will be yours. However, visitation is something you need to prepare yourself for. It should start very gradually because they need time to get to know each other. Termination of parental rights is only warranted when there has been a situation such as abuse. It doesn't sound as if that is the case here. There is no reason to terminate his rights. I understand you are probably angry with him for not being involved for so many years and not taking responsibility. That's your issue though and you've got to separate it out from what is right for your son. » Return to questions What are the chances that I will get sole custody? Darlene's Question: My husband and I have split up and I want sole custody of our daughter. He is in the military, and has only seen her four times since she was born. I want him to be able to see his daughter, but he doesn't have a lot of experience at being a parent. Will the courts rule in my favor? Brette's Answer: Custody is decided based on the best interests of the child. If you're arguing that you should get custody, then you need to argue that is what is best for the child and show examples of what your ex has been doing that makes him not suitable to have custody. The thing to remember is that the court wants your child to have two parents, so it is likely the court will create a plan that allows him access. If you are able to, it might make sense to try to work this out on your own without having the court intervene. » Return to questions Can I get sole legal custody if I already have sole physical custody? Carolyn's Question: Currently I have sole physical custody of my son and have joint legal custody with my ex. As part of the joint legal custody agreement, I am told that I have to contact him for certain things. However, he has changed his number so that I can not call him. He has only seen my son twice since court even though he has visitation rights for three times a week. He wants nothing to do with his son. Can I get sole custody based on theses facts? Brette's Answer: If you have no way to contact him, then you are not required to get his permission to make certain decisions. You could request sole legal custody and likely get it if he has no interest. Can I make sure he never gets custody, even if I die? Amy's Question: I have been divorced for over 5 years and my ex has never paid child support and he has rarely seen his child since our split. Approximately 2 years ago, he up and moved to Arizona and we haven't seen him since then. Plus, he hasn't called us in 9 months. What are my options to make sure he never gets custody of our son even if (as worst case) I died? Brette's Answer: First of all, you have to realize that your child has a father and you can never change who it is. Your child has a right to know who his father is and to develop a relationship with him. If he has moved away and lost contact it's very unlikely he would ever ask for custody, or if he did, that a court would give it to him. If you have sole custody now, there is nothing else you need to do. If you are concerned about what might occur should something happen to you, you should have a will drawn up naming a guardian for your child. You should specify why his father is not an adequate guardian. Be aware that your choice in the will is not binding on the court; it is merely a factor that is considered by the court in making such an important decision. » Return to questions Does he have the right to access records if I have sole custody? Tammy's Question: I have sole physical and legal custody of my 2 children. Can my ex husband's new wife gain access to educational, or health records regarding the children? Does he have the right to give consent for the new wife to call my children's school and try to get information regarding counseling? Brette's Answer: If you have sole legal custody, you are the only one authorized to access your children's records. You can give permission to your ex, but that doesn't give him the right to then authorize his new wife. You need to make it very clear to the school and health care providers that you are the only one with legal rights to these records and that they absolutely cannot share it with anyone else without your direct permission. [Update: Some states, such as Arizona, Indiana, and Illinois, allow both parents equal access to school records. You should check with the laws of your individual state to verify parental rights to access school records] » Return to questions Can I get full custody of my unborn child if he abandoned us? Chantilly's Question: I'm six month pregnant, and the father left us when he found out. We did not have any contact after he left, but now he wants to know how the pregnancy is going (with demands and verbal abuse). He keeps telling me that he has the same rights as I do, and will have the baby half of time no matter what. What can I do to have full custody of my baby? Brette's Answer: The first thing is to calm down. No one is going to take a newborn away from the mother without a very good reason. You can choose to force him to bring a paternity case if you want, but this just makes things difficult. He does have rights as a parent, and it is true that mothers and fathers have the same rights, however you have to understand that there aren't many judges who are going to order a newborn to split his time half and half. This sounds like a situation where he would be given visitation. If you can't agree on a visitation plan, one will be set up for you. Breastfeeding makes it less likely that he will have a lot of time in the beginning. You do need to accept the idea that he and your child deserve to have a relationship and you need to get to a point where you're willing to allow that to happen. This man was good enough to make a baby with, so he most likely is good enough to spend time with the baby. Can I get sole custody if he's physically abusive to the kids? Lisa's Question: What are my chances of getting sole custody of my children if my ex has been mentally and physically abusive to them? Child services are involved, and my children have expressed not wanting to see their father to their therapist (and have not done so in 6 months). Brette's Answer: Your chances are very good. However, it may be healthy for your children to slowly build a relationship with their father under the care of a therapist. Your goal should be to protect them, but also to do what is right for them. » Return to questions Can I get sole custody if he's verbally abusive to me? Yvette's Question: I have a 6 month old baby girl. My husband verbally abuses me, did not support me emotionally through my pregnancy, and does not help me with the baby. Do you think I can get sole custody? Brette's Answer: The emotional abuse is a concern and if you are ever in physical danger you need to call the police or go to your local domestic violence shelter. However, his relationship with you really does not determine whether he should have contact with his child. A decision about custody will be made based on what is in the best interest of the child, and in most cases, it is best if the child has two parents. » Return to questions Can he get sole custody if he's physically and verbally abusive? Melissa's Question: What are the chances that a father will be granted sole custody in the event of a divorce if he is abusive, not only physically, but also emotionally, and mentally? Brette's Answer: The question is how much you can prove and what kind of impact you can prove it has on the children. Can he get full custody if his parents watch the kids while we work? Melissa's Question: I work full time and so does my husband. His mother and father are the kids caretakers while we work, and my husband always says that he would prove that he and his parents are the sole providers. Can he really get full custody just because his parents watch them during the day and see my kids more than I do? Brette's Answer: Custody is decided based on what is in the best interests of the children. The child care situation is a factor, but he will certainly not get custody simply because his parents provide child care. You need to make plans for how you would obtain child care if you had custody. » Return to questions Can I get sole custody if my ex is unemployed and moving? Cindy's Question: My husband and I are divorcing due to physical and mental abuse. We both filed for primary custody, and there was a social study done in which I received primary custody. He recently lost his job and plans to move to a town almost 50 miles away. He has also sold property, when it says in our divorce papers that he is not allowed to do that. He gets visitation from four days a week, three times a month. What are my chances of getting sole custody? Brette's Answer: Not having a job has no impact on
custody and visitation. Since you already had a study done, I don't think you
have any grounds for a change. Moving isn't a reason for a change either,
especially since you can continue with the schedule as is. Whether he sells
marital property is also not a factor in custody. Custody is about the best
interests of the children, period. Can a sole custody order be reversed? Melissa's Question: Can sole custody be reversed? Brette's Answer: Any custody arrangement can be
changed, however you generally need to show a change of circumstances - a reason
why it has to be changed, unless you appeal it and the higher court reverses the
order. Can I seek full custody if he stops seeing the kids? Question: I had to file a restraining order against the malicious behavior of my ex-husband's girlfriend. All 3 of our children live with me and he pays his child support. He hasn't seen our 15 year old daughter in over 2 years, and he was only picking up our 8 year old son every now and then. Since I filed the restraining order against his girlfriend, he said he's no longer going to pick up our son. It's been one month since he's seen our son. Can I seek full custody because it is detrimental to these children's welfare? Brette's Answer: Why do you want to seek full custody? Right now there is no visitation happening. I don't think it is detrimental to children to have visitation on the books. In fact, I think it is detrimental to children to NOT see their father. I understand there are some issues in your family, but really the best thing for children is to be able to develop a healthy relationship with their father. Can I get sole custody if my ex has no contact with the kids? Linda's Question: Currently I share "joint custody" with my ex-husband. However, for the most part of our 5 year separation, he doesn't pay child support, doesn't exorcise his visitations, does not call the kids, etc. There's really no contact between the children and him. And for the past year, I have no way of communicating with him whatsoever. Do you think a judge would award me sole custody? Brette's Answer: A judge will want to encourage contact between your ex and your children. It's likely that if your ex appears and contests your request, the judge will let him have another chance. However, if he doesn't show up, that will show how he feels. The court would likely let you have sole custody, however it's also likely a judge would leave the door open for visitation so that he could have contact with the children should he ever reach that point. » Return to questions Can I get sole custody if he's never seen our child? Leslie's Question: What are good reasons that a judge will grant sole custody. The father of my child has never seen her and expresses no interest in her. Brette's Answer: The fact that the father has never seen nor expressed an interest in the child are good reasons. Is he contesting your request though? That alone is a problem. If he is contesting it, it shows he is at least now trying to show an interest. There are a lot of reasons a parent might be ordered sole custody with no visitation to the other parent - a history of drug/alcohol abuse, child abuse, a pattern of very poor parenting, dangerous lifestyle and so on. The age of your child is going to be important. If she is a baby, there is still a lot of time in which he can build a relationship. However if she is older and has never met him, he has less of an excuse. » Return to questions Could he get sole custody if he's a convicted felon? Kareen's Question: Can he get sole custody if he has a felony and owes thousands of dollars in back child support? Brette's Answer: Having a felony conviction is a serious strike against him, however custody is decided by looking at all of the circumstances in the case. Child support does not affect custody. » Return to questions I'm afraid he'll push for visitation if I ask for more child support Samantha's Question: We divorced over 6 years ago, and I was granted sole custody and my ex was granted very limited visitation. When my daughter was 3 1/2, she came home from visitation and stated she had been molested. He was indicted and the case entered the legal system. Two years later, the case was dismissed pending further investigation because she was two young to stand trial, there was no hard evidence, and he wouldn't admit to his wrongdoing. We haven't seen him since the night she came home molested. He has no contact with us. I want to file for a child support increase, but I am worried about him retaliating by requesting visitation with her. Is there any way to protect her legally from him if I request a child support increase? If I wait until she is 12 to pursue child support modification, can she testify before a judge about what happened and request not to see him and be protected then? Or should I just leave well enough alone and not pursue child support increases in the interest of keeping her safe from him? Brette's Answer: You are completely between a rock and a hard place and I understand what you're going through. You've completely laid out all of the arguments for and against going for more child support. There is a risk he will ask for visitation if you request it, but you know him and can probably predict how he will react. There is a difference between criminal cases and civil cases - the standard of proof is much different, so should you have to prove this molestation happened, you are in a different position. The problem is going to be that she was so young when it happened that it will be very questionable how well she can remember it. However, if she saw a Dr or therapist who can testify as to what she said, how she behaved or what exams showed, then you have some evidence. One thing to consider is whether another dust up over this would be something that would harm his career or current family. If it would, it might be a great reason he would never pursue it. » Return to questions Can I get full custody if I suspect that he's doing drugs? Shannon's Question: What would be my chances of getting full custody of our daughter if I had suspicion that her father was using marijuana, even at times when he has her at his house? Brette's Answer: A suspicion isn't very helpful. You would need to request drug testing. Can he get custody if I date someone who's been in rehab? Alicia's Question: Can my ex-husband get full custody of my two daughters because I date a man that was successfully discharged from a rehab because he HAD a physical addiction to prescription painkillers? I do not do drugs, and I do not drink. My ex is threatening to take me to court if I continue to date this man. Brette's Answer: Custody is determined based on what is in the best interests of the children. Someone who has successfully completed rehab is not likely a danger to your daughters unless your husband can show he is using again or is creating a dangerous situation for your children. Also, dating someone is quite different from living with them. Custody Determined by Default Divorce Leslie's Question: My husband was abusive and forced me to leave my children, so I now live in another state. He filed for divorce and custody was awarded by default because he claimed that he didn't know where I was. I have been talking to my kids every day, and he even has my phone number. The court ordered me to pay child support, and now he is trying to get full custody of our children. How can I fight his lies. He's telling the courts that I am an unfit parent. Please tell me how I can fight back. Brette's Answer: You need to hire an attorney in the state your
children live in and contest the custody case. The attorney will also be able to
tell you if the divorce can be challenged. If you don't how to find an attorney,
call the state bar association and ask for a referral for a family and
matrimonial attorney. Could he really get sole custody? Natalie's Question: My husband and I divorced about 8 months ago. I have suffered mental abuse from him and physical abuse on a few occasions. I told him that I wanted to move to another state to be with my family. I followed all the guidelines and sent him his certified letter. He filed a motion to stop the move and get temporary sole custody of the children based on the fact that I was homeless (which is a complete lie). The judge granted him the temporary order, and we go to court in less then a week. Could he really get sole custody of my children? I have a long list of teachers, principles, and other friends who are ready and willing to stand up in court and testify as to the kind of mother I am. I was a stay at home mom for 10 years with these girls so that I could always be at every function with them. He has also said that he would give the girls back to me if I dropped child support. Brette's Answer: This sounds like a difficult situation for you. You've asked my opinion. My opinion is that you need to stop letting this man run your life for you. Stand up to him and do not allow him to intimidate you. It sounds like you have a lot of witnesses ready to testify on your behalf and that is wonderful. However, do you have an attorney? I would recommend it. You asked if he could really get custody of your children. Either parent can be given custody, however, the judge will decide based on what is best for the children. Your job is to present yourself as the parent best able to care for them. Present the court with facts about where you live, how you support yourself, and have all of your witnesses testify. Is there a Law Guardian or Guardian ad litem in your case? Talk to him or her and welcome him or her into your home. This person is your best friend in the court room. As for your ex's offer to "let" you have custody if you
drop child support - it frankly disgusts me. Children are not
bargaining tools and should not be used as a way to reduce financial
obligations. Even if you agreed to his ridiculous offer, there would
be nothing to stop him from taking you to court again later and
saying you are not suited to care for the children and that he
should get custody. © 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
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