Child Custody Issues - Answers to Your Questions

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.

By WomansDivorce | Answers by Brette Sember, J.D.  

Individual Pages on Specific Custody Topics 

Types of Custody

Filing For Custody

Child Custody Issues and Factors

Parental Kidnapping and Child Custody

Custody and Electronic Communication

Grandparent Custody and Guardianship

Types of Custody

What does legal custody mean?

Leslie's Question: My divorce says: "the parties shall be awarded legal custody of the minor child, with me being awarded sole physical custody". What does legal custody mean?

Brette's Answer: Legal custody refers to decision making. You have to make all important decisions together - such as school, religion, major medical decisions, and so on. Sole physical custody means the child lives with you and you make day to day decisions.

What's the difference between sole and 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.

Does joint custody mean equal time with each parent?

Yvette's Question: I'm a stay at home mom with a toddler and a six month old. I have been the primary parent AND done everything for the kids for their entire lives. My husband doesn't spend any time with the baby, but yet he wants joint custody? Will the court grant this?

Brette's Answer: Joint custody has several meanings. You need to understand that there is a difference between joint legal custody and joint physical custody.

Many couples share joint legal 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.

Physical custody can also be called joint, but divided up differently when it comes to the schedule - every other weekend, etc. True joint split physical custody means 50/50 time split. Since you have been the primary parent, it is likely you would have the most time with your child.

Also, 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 children.

What rights would I have with joint custody?

Chanel's Question: I want to go for custody where he gets her Friday through Sunday at a set time. I also want him to pay for her medical insurance and be able to call and check on her. I also want to meet the other person in his life that is going to be around our child. Would that be joint custody or would it be something else?

Brette's Answer: You're talking about how you want to set up physical custody. You need to decide how you feel about legal custody - which has to do with who makes important medical, education, religious decisions in your child's life. If you think you can work together on these things, then you could have joint legal custody. You can ask for him to put the child on his health insurance if he has a plan and for him to pay uncovered medical expenses.

Can he get bird's nest custody without my agreement?

Kathy's Question: Can my ex-husband get custody and make me move out for a week and he move in for that week?

Brette's Answer: Your husband can't decide that but he can ask the court to order it. That is a solution that works for some families, but in my experience it is never a good long-term solution. It often works for a few months or a year, but then other arrangements need to be worked out. The benefit of it is that the children are not displaced and can remain in the home.

If my son is living with me, does it mean I have sole custody?

Gabi's Question: Does it mean I have sole custody of my son if he's currently living with me? If so, should I get a custody order for him since his father is not so involved with his life?

Brette's Answer: It is always a good idea to have a custody order to reflect the current situation so that there can be no question of where your child should be.

Do I need his consent if I have primary legal & physical custody?

Renee Asks: My ex and I have a "high conflict" custody case. I was awarded Primary Legal and Physical Custody and he has visitation every other weekend during the school year and every other week during the summer. How does this translate to the lay person? Can I decide medical and educational needs without his consent, or will I have to petition the Court for every little thing? He refuses to accommodate any request I make!

Brette's Answer: I don't know how those terms are interpreted by your court or your state, but my reading of them would indicate you can make medical and school decisions. If he will not agree to changes, you will have to go to court, or to mediation.

Who makes the decisions if he has primary custody?

Christina Asks: We have Joint custody and he has primary residential custody. Does that mean he is the only one who can make decisions for my son? His step mom signs school records and at the doctor's office she has herself listed as the Mother. The school doesn't call me if they can't get in touch with my ex (they call the step mom instead). Her brother is also a sex offender and stays at their house sometimes and even sleeps in the same bed as my son. What are my rights and hers?

Brette's Answer: Joint custody means you share legal responsibility and decision-making and must work together. Residential means the child lives primarily at his home. The stepmother should not sign school records or list herself as mother. To clear this up share a copy of your custody order with the school and doctor. The school should be directed to call you. Having a sex offender sleep in the same bed as your son is a real problem and could be used as the basis for a change in custody.

What if he was named the primary custodian but the kids live with me?

Tiffany's Question: What can I do if my ex-husband has primary custody over my children, but they have always lived with me?

Brette's Answer: File a petition to get the order changed. If they live with you, the order should reflect that and it should be easy to get it modified.

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'll have to go back to court to get this resolved. You should get an attorney to help you with this.

What type of custody should I ask for if he's abusive?

Angela's Question: I have a 6 month old and haven't seen his father since I was 2 months pregnant. He has threatened to hurt me if I ever out him on child support, and his girlfriend slashed my tires. I'm so scared for the safety of my son (my ex uses drugs, has a past criminal record etc.). I want to be the one who makes all decisions for my son, but don't know what type of custody I should ask for. I want him to have very little visitation that is supervised. What should I ask for?

Brette's Answer: You can ask for an order of protection or restraining order. You can file for child support and for sole legal custody. You could ask for supervised visitation - since he doesn't know your child at all, that would be a good way to start.

What are possible custody arrangements if the 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.

Can parents have split custody of the kids with no visitation?

Question: Do parents ever split the kids with no visitation? I plan on moving out of state and would like to make this proposal. My soon to be ex-husband has abused me in the past...he and his family worship our 3 yr. old son and he virtually ignores our 5 year old daughter. Our son will thrive in his environment; our daughter is destined to have problems.

Brette's Answer: If you mean is it possible to have split custody, where the children spend blocks of time with each parent (such as 6 months with each), yes. If you're asking if it is possible for one parent to take one child and the other take another child and never have them see their siblings or other parent again, that would be a very unusual situation and would not happen without a very compelling and out of the ordinary reason.

Are prior custody orders still valid during divorce?

L's Question: If custody papers were drawn up before marriage, are they still valid after marriage? We have joint custody, but my husband hasn't allowed me to see our 6 year old son since late Feb. We've been separated for seven months and I'm thinking is time to begin our divorce. Unfortunately, I lost my job 3 weeks ago.

Brette's Answer: You can file for enforcement/violation of the order in the court where the order was issued. It is still valid. You may qualify for free legal assistance from a legal aid office in your county. Ask at the courthouse about that when you file your petition.

Do the children's things stay with the custodial parent?

JD's Question: We’re divorcing and have two young children (ages 9 and 6). Are the children's belongings (furniture, toys, etc.) negotiable or will all of their things stay with them and the custodial parent?  My husband sees the kids every other weekend and chose to live three hours away from the children and me.

Brette's Answer: Generally the kids' things stay with them, but keep in mind they will have a room at each parent's house so will likely want to have some things at each home. 

Is he allowed 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 say 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 the custodial parent is and who is permitted to pick the children up and communicate with the teachers. You should always include these instructions when you register your child for school or daycare. If your order gives him access to records, then there was nothing inappropriate.

Filing For Custody

How do you file for custody when seeking a divorce?

S's Question: How do you go about filling for custody of the child when seeking a divorce?

Brette's Answer: You can include it in your divorce pleadings if you are filing. If you are not filing immediately, you can file separately in family court.

Should I file for custody before I file for a divorce?

Kandi's Question: My husband and I are legally separated, and he has custody of the kids. I want a divorce and can file in my current residential state. Should I file for divorce first and then go after custody of my kids, or should I pursue them at the same time?

Brette's Answer: Actually your choices are the other way around. You can work out custody first through family court (or through alternatives like child custody mediation) or you can file for divorce, during which custody will be determined. What you choose is up to you. Family court is a lot less expensive than a divorce case, if that helps.

How can I get a custody and visitation order?

Tanya's Question: Can I get custody of our 4 children? We live away from their father and he sees them every holiday, but refuses to pick them up and I have to drive 2 hours to drop them off. When the children are with him, he refuses me to let me speak to them and always starts by saying he wants custody of the kids. How can I get some kind of custody and a visitation order put in place?

Brette's Answer: File for an order of custody and visitation. The current schedule will likely be kept if you have no objection. You can ask that he provide transportation or that it at least be shared. You can also ask that the order specify that you shall have reasonable phone contact with the children while they are with him.

Can custody issues be decided 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 their 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.

How can I file for custody if I have no clue where to find him?

Corina Asks: I have an 8 year old son and my ex has only seen him 20 times over the last eight years. If I file for full custody, will I most likely get it? The thing is I have no clue where to find him.

Brette's Answer: You will likely get sole custody but visitation is still a possibility. As for service, 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.

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 children's best interest. 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. Read more about Split Custody Arrangements

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.

How many times can a custody case go to trial?

Traci's Question: How many times can a custody case (custody & visitations) go to TRIAL?

Brette's Answer: The original case has one trial, but every time someone asks for a modification, permission for relocation or claims there has been a violation there can be a new trial

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.

Does the custody agreement still apply if I drop my divorce case?

Amy's Question: If I drop my divorce case does the custody agreement still apply?

Brette's Answer: Not unless it has been entered into an order by the court.

Should I keep the custody agreement we got when we separated?

Question: We separated over a year ago and recently we have been trying to work things out. We share legal custody and I have physical custody. He wants me to drop our custody agreement but I don't want to. I've been told once it is entered through the court system it can't be dropped, and in order to change it you have to amend it. I have taken care of our son basically by myself since he was born, and he has barely had anything to do with him. Plus, he has bipolar disorder and is not taking medication or even seeing someone for it. What are the chances of him actually getting anything changed?

Brette's Answer: Particularly in situations where your relationship is not smooth, it's a good idea to have a valid custody agreement so there can be no confusion and so you have a way to enforce it. Once you have a custody agreement, it can be modified. Judges like to maintain the status quo, so it is unlikely the judge would change your arrangement, particularly if it has been working. If your ex has a diagnosis of bipolar disease and is not following recommended treatment, that would be a concern to the court in establishing a parenting plan.

How do I regain custody if he was adopted by my cousins?

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.

Child Custody Factors

I'm afraid he'll get custody of the baby if we divorce.

Tonya Asks: We were married a little over a year ago. He and I can't resolve our differences, and we're more like room-mates than a couple. However, we have a 2 month old baby, who I of course love more than the world itself. I am scared to divorce him, because of her. I take care of her all the time, day and night. He may hold her or something a few hours each day, even on weekends, but he often needs help. I am nervous, because his parents have a lot of money, so I'm afraid they would try and ensure he got custody. I am so scared to lose my daughter. I don't even like being away from her for a few hours. With her being so little, and a breastfed baby, what are the chances he could convince them to give him custody?

Brette's Answer: First of all, I know how utterly overwhelming a baby is and I understand how possessive you feel about her. What I need you to understand is that she has two parents. Picture her when she is 10. She's going to need a daddy who loves her and is close to her, as well as a mommy who adores her. What she deserves is to have two parents in her life. That's the greatest gift you can give her.

If you do divorce, she should be able to spend time with both of you. No one is going to take a breastfeeding baby away from her mom without extreme circumstances. What you should consider is a way to gradually create a plan that allows dad and baby to become comfortable and develop a relationship. Eventually (and this is definitely not tomorrow!) it would probably be best if he were able to spend time with her alone. At some point it would be fair for him to be able to have overnights with her on a regular basis. This should happen gradually in a way that fits her developmental stages, but she most definitely needs to have a father in her life that is a regular fixture for her.

I also hope that you will consider marriage counseling. A baby changes your whole world for a while and makes it hard to manage anything, let alone a relationship with challenges. I would urge you not to give up yet.

Will I get custody if he doesn't see our child on a regular basis?

Peggy's Question: I have raised my son pretty much on my own from birth. He is now 18 months and his father left us when he was about 6 months. He hasn't been in the picture much, and shows no emotional interest in our son. He threatens me with a custody battle, saying he wants it half and half. He was discharged from the army for having terrible panic attacks and has been checked into the hospital about 11 times in the past 2 months. Would I have any chance in getting full custody? I have more than enough people to attest to his lack of responsibilities, even his parents are on my side.

Brette's Answer: Yes, you are in a good position for custody. Visitation however is another matter and you should try to work out how it could best happen in a way that you would feel comfortable. It sounds like he hasn't spent a lot of time with him. I would recommend a gradual ramping up of visitation so they can become comfortable with each other. Is he getting treatment for his panic attacks? That would be a concern I would have. If they are not under control, then he may not be able to have visitation alone without some kind of help.

Can I get custody if my ex moved and didn't give me his address?

Misty Asks: Can I get custody if my ex moves and doesn't give me his address phone number or won't allow me to see where he lives?

Brette's Answer: This wouldn't necessarily be grounds for a change in custody; however you can definitely ask the court to require him to provide this information.

Could I lose custody if I move out without the kids?

Natalie's Question: We had been married for 10 years and have 2 kids. I want a divorce and a sole custody of my kids. He says he wants the sole custody of the kids as well. I really want to move out before the divorce is filed and final. Will it turn against me as far as having custody of my children if I move out?

Brette's Answer: If you move out and leave the kids in the marital home with him, it could hurt your chances. Judges like to leave kids where they are, so if you leave, it reduces your chances of getting temporary custody. The parent who gets temporary custody is the one most likely to get permanent custody. I think you need to go see an attorney who can give you some personal advice and help you come up with a plan for how to proceed.

What are my chances of custody if he's abusive?

Jamee's Question: I'm not married, but I'm engaged and we have a 7 month old baby girl. He pushes me around sometimes and tells me he wants to hit me but doesn't. He loves our little girl and plays with her when she isn't whiny, but I can't even get him to watch her long enough for me to get a bath or shower alone. I do the laundry, the shopping, and cater to her and him. Not to mention I'm still a senior in high school with straight A's. I don't have a job though. Will he win over me if it comes to a custody battle?

Brette's Answer: You need some support. Is there an adult relative, friend, teacher or guidance counselor you can talk to? It sounds to me like you are in a situation in which you are not happy and where you may not be safe. No one has the right to push you or hit you and you need to take steps to protect yourself and your child. Frankly, custody is the least of your worries right now. What if he pushes you while you are holding the baby and you fall and she is injured? I think you need to think seriously about the situation you are in. It's very unlikely he would be awarded custody. You need to talk to an adult who can help you decide what your options are and how to get you out of the situation you are in.

How can I cope if he provokes me in front of the kids?

Jessica's Question: I need to separate my relationship with my husband from my daily activities with the kids. I have two boys that don't do what I say, and it always ends up a yelling match. I know this yelling could cause me to lose custody. We haven't actually filed, but it's a real possibility. I feel that my husband wants to upset me so I will cry or yell, and that the kids don't listen to me because they see him blowing me off. I need to use my smarts and not yell, but sometimes I get so frustrated and my voice rises. What can I do to save my family from this and protect myself from losing them? I only make about 500 a month and am the primary caregiver. Am I being set up to lose? Where can I go to get help without hurting my chances if we go to court?

Brette: It's great that you are smart enough to see what is happening and that you want to take steps to fix it. Normally I would suggest parenting classes or a therapist to help you manage your emotions, but if you are financially strapped you may not be able to afford that. How about going to your library and checking out some books or DVDs about parenting? You can learn some great tips, skills and methods there. You might also try meeting with some other moms that you know and swapping stories and tips. Having a support group can really get you through it. You also obviously need to find a way to cope with the feelings you're facing because of the divorce as well as your husband's behavior. Divorce is never easy. Is there a close friend you can sit down with and talk to about the situation? You've got to find a way to not allow him to get to you. You could try deep breathing counting to ten or simply not engaging when he starts a conflict.

What are my chances of custody if the other parent is disabled?

Question: What are my chances of being awarded custody if the other parent is considered disabled?

Brette's Answer: Disability only has an impact if affects the parents' ability to care for the child. Custody is determined by looking at what is in the best interest of the child. There is a huge range of disabilities and there is no way to generalize at all.

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 was 2 years 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 do the courts look for in these types of cases?

Brette's Answer: Custody decisions are based on what is best for 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.

Can he get custody just because I'm dating someone?

Anna's Question: I have been divorced for a year. My ex-husband is bi-polar & lives with his parents, who are the ones who really care for the children. He has been hospitalized 5 times in the past for his mental illness. I recently introduced my children to someone I have been dating for a while. I only see him when my kids are with their father, but my ex is upset anyway. He said that "if this keeps up I will go for full custody". Can he do this, and does he have any chance of winning?

Brette's Answer: It sounds quite unlikely. You're allowed to date and have a life and if it has no negative impact on the kids, a court would not care. Try to avoid getting into it with him. If he does something that negatively impacts the children, then you could seek to have his visitation reduced. Good luck.

Can my ex use my engagement against me to get custody?

Ana Asks: I've been divorced for some time now. I recently got engaged and would like him to move in. My children adore him and I have talked with them, and they are good with it. The problem is if my ex-husband could use that as a way to either stop this from happening by the courts, or gain custody of the kids because of this. I just want to make sure that if he moves in, my ex-husband cannot use that against me.

Brette's Answer: The question is always how a situation affects the children. It sounds like your fiancé has a good relationship with them and is a good influence. If there isn't anything negative about it, it should not be a problem. Good luck.

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 two kids 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 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 it's 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. It's 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?

Could he get custody just because I had an affair?

Question: My husband and I are separated, and the kids are living with me. I go out with my friends once a week and am seeing a younger man. My husband is threatening to take the kids by saying that I'm an unfit mother and have had an affair. I'm the one who takes care of the kids, while he only sees them a couple of hours during the week. If I am a fit mother, can he do this?

Brette's Answer: It is up to him to prove problems with your parenting. Having an affair does not make you an unfit mother and has nothing to do with custody. A judge makes a custody decision based on what is in the best interest of the children. Both parents' lifestyles are considered. There is certainly nothing wrong with a night out with friends and having an affair does not mean you are a bad parent. However, if that means you are not home at night, come home intoxicated, or do not provide proper care for your kids, then it is a concern. From what you have described, it does not sound like that is the case.

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 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 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 in the divorce? 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.

Can I get custody back if his Dad dies?

Lula's Question: My ex-husband was awarded custody of our son and remarried another woman. My ex has died and my son is still in her care now. Can I get my son back?

Brette's Answer: Most definitely. In most cases, a legal parent trumps a stepparent. Good luck.

Parental Kidnapping and Child Custody

What can I do to prevent him from taking my daughter?

Kerri's Question: We are divorcing and have a 4yr old daughter. When he left us, we agreed to a Saturday visit but he made an unscheduled visit to our daughter's daycare center on that Friday. I am concerned because my husband is not a US citizen, does not work, and has no real ties to any community. He claimed that he was unable to visit on Saturday so decided to come on Friday (when he knew that I was at work). I am afraid that he will attempt to take my daughter out of the country when I'm not in a position to oppose or stop him.

Brette's Answer: First of all, tell the daycare they do not have permission to release your child to anyone but you. File for temporary custody. Get a visitation plan in writing from the court and if he visits her at other times, he is in violation. Apply for a passport for her and keep it in a safe place.

Should I get a custody order to prevent him from taking the kids?

Frances's Question: My ex and I were never married, and have never been to court over custody. He hasn't seen my kids in 3 1/2 years. The school told me if he came to pick up the kids, they have to let them go with him because he is the father and he has rights. Should I get a custody order so he can't get them from school unless I know about it before hand?

Brette's Answer: Without a custody order your ex has the legal right to take them at any time and the police won't stop him. A custody order will protect you and set out legal custody. If he hasn't seen your children in 3 years there is very little chance he would get custody.

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: I think you need to talk to an attorney very quickly. 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. Talk to an attorney who can help you take preventive steps such as a custody order.

Help, my ex didn't return our son and filed for temporary custody.

Vivian's Question: I let my son visit his dad for 1 week, now he doesn't want to give him back. He served me with custody papers. It's been 3 weeks already. What do I do?

Brette's Answer: You need a temporary hearing. Call the court or go there and ask what paperwork you need to complete to get one. Explain the situation.

Custody and Electronic Communication

Am I in violation because I couldn't contact him about our move?

Wendy Asks: I have custody of our three children and my ex has not seen or even called them in almost a year. I got a phone call from him yesterday saying that he was taking me to court because I temporarily moved three miles from my home and did not inform him. I have no way to contact him because I don't know where he lives or what his phone number is. What was I to do? And do I have to even inform him of this since he has nothing to do with them any other time?

Brette's Answer: It doesn't sound like you have anything to worry about. I would encourage you to inform him of address changes in the future however, because it could look like custodial interference.

Can he dictate which email account is used to communicate about our child?

J's Question: My ex says I cannot correspond about anything concerning our daughter using our family email because I and my partner both have access to it. His reasoning is only legal guardians can communicate concerning our daughter, but there is no stipulation on how we communicate. Recently he has gone so far as to call our daughter's after school program and take my family email off the contact sheet (without informing me and without giving a replacement email).

Brette's Answer: Your ex cannot control your communications unless there is a court order stating you are not permitted to communicate in that way. Give your school the custody order and make sure they understand you have a right to be in contact with them. 

How often do I have to let my ex talk to the kids on the phone?

Colleen's Question: How often do I legally have to let my ex talk to the kids on the phone?

Brette's Answer: If your court order gives him phone access, then reasonable access would be what is expected. Probably once a day or more often if something exciting happens they want to tell him about. If you're finding the phone calls to be disruptive, then you could consider a change. You ought to consult your attorney since they may be caselaw guidance available in your state.

What can I do if my ex calls our children excessively each day?

Becky's Question: How many times can my ex call our children each day? My ex will call three to ten times within a ten minute period to drill them with questions about what they ate for dinner; what they wore to school; or what I did with them. He also uses these times to set up visitation schedules with my daughter without my okay. He has open visitation, but this results in no shows, being up to four hours late without calling, returning our children late, or canceling plans the night before.

It has been seven years since our divorce and the open visitation orders were set. Should I request a set visitation schedule and contact schedule by telephone so no one's feeling are hurt?

Brette's Answer: It doesn't sound reasonable. You should keep a log of the calls. Talk to you lawyer about laying some ground rules about what will and will not be allowed.

Can I change my phone number and not give it to my ex?

Lisa's Question: Can I change my phone number and not give it to my ex-husband? He calls our 11 year old daughter almost every day and a lot of times he will make her the middle person by asking her to ask me questions or he will say negative things to her about me. I have full legal and physical custody and he has visitation every other Sunday and most school holidays. The court order does not state any phone rights and I am tired of him upsetting her when he calls.

Brette's Answer: The problem is how will you arrange visitation if he cannot contact you?

What if the custodial parent is blocking my calls?

Question: I get my daughter every other weekend. He has blocked my home number and my cell number from calling his home, cell, and their grandparents who keep her. I have no way of getting in touch with him. I worry if there is an emergency, I won't be able to contact him. I brought this up once during the negotiations and he unblocked me but now I'm blocked again and the agreement is before the judge waiting to be finalized. Is there anything I can do?

Brette's Answer: Yes, make a motion to amend the agreement to state he must not block your phone number.

Grandparent Custody and Guardianship

Do I need my ex's permission to give custody to my mom?

Cindy's Question: If my ex and I have joint legal custody but I'm the residential parent, do I still need his consent if I wanted to give my mother custody if I wanted to join the air force?

Brette's Answer: Yes.

If I give guardianship to the grandmother, could I lose custody?

Ciara's Question: I've had sole custody for about 3 years now. My ex-husband does not pay me any child support and only sees my 4yr old every other weekend. As a single mother it has been very hard to even maintain a job since 100% of the responsibility is on me. I would love to go back to school and finish so that I may provide my child with a better future. I have considered giving my daughter to his mom (only until I finish school) since the schedule would be very hectic. If I do, would I loose custody indefinitely?

Brette's Answer: You would need to talk to an attorney. Signing away guardianship is a dangerous thing - your ex could step up and seek custody and possibly win. You should consider applying for child support and having him help pay for day care so you can return to school. Good luck.

If the grandparents have guardianship, could my ex get custody?

Angela's Question: I have left my husband because of him being abusive to me and the children. The children are with my parents because they have guardianship right now due to domestic violence and drug use. I currently live with my parents and my children. He is constantly threatening me and wants joint custody when I file for divorce. Is there any chance he will be awarded custody?

Brette's Answer: He could be, since courts like to place children with parents when possible. You need to be able to show he was abusive so that he is not awarded custody.

Can grandma refuse to let me take my child if I have sole custody?

Brianna's Question: Does my grandma have the right to not give me my 2 year old based on statements given (but there are no facts) and if I have sole and legal custody?

Brette's Answer: If you have a piece of paper that gives you sole custody that the child belongs with you. If necessary, police can enforce that order.

Can my mother (the grandmother of my son) file for custody?

Question: We are in no fault divorce state. My husband filed for a divorce and also filed for temporary custody. Both of us work and my mother was taking care of our son. I am planning to file for custody but can my mother (grandmother of my son) file for custody too?

Brette's Answer: If you are not denying her contact with him, she has no leg to stand on.

Can the father and grandparents share custody?

LuAnn's Question: Our daughter and her ex have joint custody of our 6 year old grandson. Our daughter is a recovering addict (not sure about the recovering part), has no job or car, and situations have come up that she shouldn't have custody of this child. Can the father and grandparents share custody?

Brette's Answer: Generally one would have custody and the other visitation, but joint custody is not out of the question entirely. You should talk to an attorney. Good luck.

Can we get custody of our granddaughter if she requests it?

Betty's Question: My daughter has 5 kids from 4 fathers. She married the father of the latest baby, who seems to be jealous of our involvement with our grandchildren and their attachment to us. He even punched a hole in the wall when the children requested spending time with us. We have been told that when the kids reach about 12 years old, they could ask a judge to change their custody to us. The oldest Granddaughter is 13 and has been asking about how it would work. How much chance of success is there?

Brette's Answer: You should talk to an attorney in your state. It is very unlikely you could obtain custody just because the father is jealous of your time with them.


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