Someone reassure me that I will indeed get joint custody....
July 21, 2009 11:15 AM   Subscribe

Someone reassure me that I will indeed get joint custody....

I divorced in late 2004; I have weekend/holiday visitation and joint legal custody with my two school-aged children thanks to a 2005 court order; nowadays Mom lives an hour away. Recently, my fiancee and I decided to buy a home and move closer to the kids in order to increase our visitation (I'm looking for a 50/50 split). In the latest petition for modification dated May of this year, I stated that the closing on our new home was expected to be around June 30th. Well, my trial was today (July 20th)...and we're not in the house yet. We have the commitment letter, but no closing date. The Judge was EXTREMELY amenable and helped both parties along (we're both Pro Se); we had an hour long trial, many issues were commented on and explained, etc. (To clarify...neither of us are felons, child abusers, etc. In fact, we're both certified Foster Parents. She seems to be bitter, and never agrees to mediation, however; hence the court appearance.)Essentially, nothing major happened....until closing statements. the Law Guardian, who was relatively quiet until this time, decided to comment that since we haven't actually moved yet, there's not a change of circumstances and therefore the petition should be dismissed. The Judge, after some gentle leading, decided to dismiss my case without prejudice; and commented that I can refile when I've moved in the new house, and then get a temporary order until my new trial date. All in all, I felt certain that I did well, but now I'm a nervous wreck because I expected to have the order amended today.
How do I prove to the court that a 50/50 split between parents is in the best interests of my children? Did simply moving closer clinch it? Would a (seemingly) sympathetic Judge agree in principle, but be forbidden to grant the change based on some legal precedent I'm not aware of?
I'm just looking for someone who may have had something like this happen to them to give me a pat on the back and say "it'll be alright." If you can, thanks.
posted by anonymous to Law & Government (8 answers total)
To begin: The general qualifications about whether or not I'm your a lawyer(I'm not), whether I'm a lawyer at all(soon, hopefully), and whether I know anything your state or case(I don't)

The problem with child custody decisions is that there's nothing that can clinch it, and little that can given you any real assurance that the judge is going to rule one way or another. The court has very broad discretion to what it feels are in the "best interests of the child" It sounds like you've got a good start, and the judge is amenable to your position. If you've already got joint legal custody, then it sounds like the court thinks you can are your ex-spouse can work together enough to make that arrangement work, which is a big hurdle to be over.

At this point, that's all you can really have, unless you want to hire a lawyer who can actually advise you about how likely you are to get 50/50 custody and make legal arguments on your behalf. Even then, it's really just up to the judge, most places. I know it's hard to hear, but the only thing you can really do is wait, and make your case as best you can when get the chance.
posted by Bulgaroktonos at 11:46 AM on July 21, 2009 [1 favorite]

For joint custody to work both parties need to be absolutely committed to making it work and supporting each other--it is not something that should be entered with out thorough consideration or based on good intentions--it is almost like being married as it relates to the children. I have no idea whether the court will award it but this is not something I would do pro se. There should be a very specific written agreement that guides visitation/physical custody, decision making, etc. of the children. Often courts require a trial period to observe the parents ability to make joint decisions on behalf of the children.
I would encourage you and your ex to retain common counsel ( this will require both of you signing a waiver re: representation) and have an experienced attorney walk you through the myriad considerations. If you and your ex can not do this together--it tells you something. There is no reason you could not do this yourself--but I would want an experienced hand asking us both questions. The cost of well informed counsel is a small price to pay for what can become very trying. Remember, joint custody is about the welfare of the children not the preferences of the parents. Wishing you well
posted by rmhsinc at 1:04 PM on July 21, 2009

Are you SURE that 50/50 is really in the best interests of your children?

I'm speaking as a child of divorce, whose mother had sole joint and legal custody and whose stepbrothers' parents had 50/50 joint custody, and I will tell you that even as a kid I was so very thankful that I didn't have to deal with that. It's very difficult to have two homes. They were constantly leaving things at one parent's house that were needed at the others. Their parents had more interactions than mine, and the interactions were stressful on them. There was much hurt when they were old enough to choose which house was their "favorite" and they were able to determine where to spend more time. While my dad could have been more involved in my life and could have had more frequent visitation, I never felt literally torn between two homes.

Please evaluate whether this is really in your childrens' best interest or just something that you really, really want. If it's the latter, ask for more visitation without necessarily having a 50/50 split. If your kids are school-aged, they might have an opinion. Have you asked them what they really want?

I'm sorry that this is probably not what you want to hear, but I had to speak up as a kid who was grateful to not have to deal with 50/50 custody, and would have been upset if someone insisted it would have been in my best interest.
posted by peanut_mcgillicuty at 1:05 PM on July 21, 2009 [2 favorites]

That should be, my mother had sole physical and legal custody, obviously.
posted by peanut_mcgillicuty at 1:06 PM on July 21, 2009

And on the other side, my neighbor has joint custody of his two children and it works incredibly well for them. The boy is my son's best friend so we see him a lot and he is comfortable with our family. He's well-adjusted, looks forward to his time both at his mom's and at his dad's, and is really a happy kid. The parents know that the kids come first and they're incredibly civil and adult about interactions.

It works really well in some situations, and especially when the parents put the kids first.
posted by cooker girl at 1:38 PM on July 21, 2009

I want to congratulate and commend you for taking the steps necessary to be a larger part of your child's life. More fathers need to do this, and it's a shame that society has made it as hard as it is.

If you live in WI, you have a very good chance of getting a 50/50 placement, barring any reasons not to. In any other state, I have no experience with placement and custody affairs.

Ideally, you and your ex would work out a schedule together. Outside of that, legal action must occur. It will go better for you, and your child, if you have an attorney to help you - both now and in the future.

I highly recommend you retain an attorney. I cannot stress this enough, actually.

The posters who told you to reconsider can choke on a bucket of cocks. As a single father who has been through the wringer, that advice neither answers the question, nor does that attitude reflect correct thinking. The best interests of the child are what the parents suppose them to be, within the limits of the law.

As an aside, I went through that wringer and now have ~70% placement, so it is possible.

Keep your chin up, keep doing the right thing, and for the sake of the child - always, ALWAYS, be the better human and parent.
posted by Pogo_Fuzzybutt at 1:52 PM on July 21, 2009 [1 favorite]

you need to be in contact with fathers' rights groups.
posted by nadawi at 2:12 PM on July 21, 2009 [2 favorites]

The guardian was accurate. Move. Refile.

Keep your focus on your child's needs. 50:50 can be quite difficult. Talk to your kids, and make their needs paramount. Be involved with school, friends, sports, etc. Even if they aren't at your house 50:50, you can drive them to activities, be a sports team volunteer, etc. Those things matter a lot. This isn't about what you need; it's about what they need.

In most states, at some age, your kids will be able to choose where to live. They will reach that age sooner than you think.

Especially if you are this stressed, you need a lawyer.

Pogo_F, I'm a single parent. We had a 50:50 agreement; it was my son who asked that it change. I jumped through hoops, and still do, to make sure my son has a relationship w/ his dad. Father's rights are important, but the kids' rights are more so. The kids could end up at Dad's 60% of the time; it all depends on what they need.
posted by theora55 at 9:51 AM on July 22, 2009

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