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My Blog


How to Guarantee that You Won't be the Custodial Parent

Posted on June 1, 2015 at 1:04 PM

How to Guarantee that You Won’t be the Custodial Parent

Before you read any further, I realize what I’m about to present is plain common sense. I’m not trying to insult your intelligence but you would be utterly surprised at the number of times intelligent people do rather dumb things when it comes to their personal lives and especially when a court hearing is on the calendar. So I am going to take a different approach because some folks benefit more from hearing what they shouldn’t do rather than what they should do.

I tell almost all my clients that custody cases are won or lost largely due to a parent’s behavior and because the parent has lost sight of what’s in the best interests of their child. These are basic common sense points but if you ignore them, you can put yourself at a severe disadvantage of becoming the primary custodial parent or even having joint custody.

Try To Maintain Custody of Your Children from the Get-Go

This is huge. If you move out of the marital/joint residence and leave your children with the other parent, you are essentially giving away custody. This sounds so simple but many people make this mistake. You can’t move out without your kids–period. No matter how bad the situation with your partner, you need to maintain your living arrangement with your kids. Find a way to make it work. If you’ve decided that moving out is the best thing for you and the children then make sure you get the other’s parent’s consent in writing to do so. An email or a text willdo.

What happens if the other parent doesn’t agree or what if the other parent tries to take the children first? If it is clear that you are getting divorced or separating from your spouse/co-parent, then make it very clear to them that s/he cannot leave and take the kids without your permission. Make this clear in several emails, texts, etc. that you do not consent to the children’s removal. Your partner/spouse, can move out, but the kids need to stay until the case is resolved.

You should also file a Petition for Dissolution of your marriage or Petition to Determine Parentage (for unmarried couples) in the District Court immediately. If your spouse moves out with the children behind your back, then you will have a good case for a court to bring them back on an emergency basis. You will have documentary evidence proving you didn’t agree for the other parent to take the kids.

Stay Active in Your Children’s Lives.

Have you met with the children’s teachers? Do you schedule doctor’s appointments? Do you take the kids to their extracurricular activities? Do you spend time with your children? Do you take them to buy clothes? Do you take them to buy school supplies? Do you attend their school events/extra-curricular activities? The more “yes” answers the better!

If you haven’t taken an interest in your child’s life until you file a Petition to Determine Parentage or file your divorce petition, then you are unlikely to be able to turn it around in time to become the primary custodial parent. In my experience custody needs to be earned from day one of the child’s life. If you were absent from the child’s life or took a back seat to the other parent, then your case becomes rather challenging.

Don’t Alienate the Other Parent

Discuss the children’s issues with the other parent. Do it via email if you have to. You two may not agree, but at least you have a record that you tried. Unless there’s outright physical, sexual, emotional, or other types of abuse, you must allow the other parent to co-parent. This does not mean that you shouldn’t be taking control, but you should also remember that there are always two parents and both have a legal right to input into the children’s lives.

Don’t be a bad parent

Don’t put yourself into a position where the other parent could get an order of protection against you or worse, file a criminal charge.Separating couples often have at least one big blowout. They also are prone to argue a lot. However, don’t ever put yourself in a position where the other parent could make allegations to support an order of protection against you. Don’t stalk them. Don’t contact their job. Don’t contact their new boyfriend or girlfriend. No Facebook or other social media stalking or bad-mouthing. Avoid verbal altercations at all cost. Don’t ever send threatening emails or text messages.

This is plain common sense but here goes: if you drink, smoke marijuana, or use other drugs don’t do it around your children; especially hard drugs. If the other parent knows you enjoy recreational drug use or alcohol use, you might want to consider quitting while the case is pending. Of course, if you have a legal permit for medicinal marijuana this will likely not apply. Similarly if you enjoy other adult activities keep those out of your children’s lives.

Obviously putting yourself in a position where you get arrested especially for Domestic Violence or DWI, testing positive for illegal drugs or becoming promiscuous to the point that the other parent can substantiate it with evidence severely hampers your chances for a favorable day in court. This is not the time for anyone to discover you have a porn addiction or that you frequently drive after drinking.

Nothing guarantees that a court will award you primary custody but there are certainly several factors that the other parent can argue against you getting any custody. Please bear the four points we’ve discussed in mind at all times.





Categories: child custody

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