Will this hurt my case for custody? - Mothering Forums

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#1 of 9 Old 08-21-2011, 11:34 AM - Thread Starter
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I've been here before and have had a hard time figuring out the best thing to do. I've finally come to the decision that what's best for DS is to have both of his parents in his life but that X and I need to live separately for us all to be happy. It's been such a difficult decision to make because I really didn't want X or I to miss out on time with DS but this is our reality. So, with that said, DS and I are moving out in early October.


Until then, I will be back at work in September and DS will stay home while I am working. X works from our home and has sporadic part time hours. So he will be enlisting his mother to come to our house to watch DS while I am at work since he will be at home but unable to  care for DS while he is working. This arrangement will be for about a month.


I've been trying to get DS in daycare for this first month that I'm working before we move out because I really don't like X's mother and X is not willing to adjust his hours to stay with DS as much as possible, he wants his mother to take over and to be able to come and go whenever he wants. (He hasn't said so but I know this is the case).


I feel the best thing for DS (ignoring my personal feelings) is to be home for this first month while I am away and I'm hoping X will be around as much as possible to spend time with DS as DS is in love with his father. He just turned 1.


After we move out in October, we will likely have DS see X every other weekend and 2 days a week but he will always spend the night with me as we co-sleep and he's still nursing. We've agreed that this will change as DS gets older.


My questions are:


1) Should I wait until we move out to apply for custody? If I apply now and X is the one "caring" for DS while I work, won't that work against me?


2) How will this affect my case since X will have spent most of September with DS while I'm working 9-5pm?


3) X and his mother can get very ugly (his mother threatened to take me to court for grand-parents' rights though I've never stopped her from seeing DS). Will spending this month with DS beef up her case should she try to take me to court for grand-parents' rights in the future?


- ETA: X's mother has a 14 year old son and she is going through a separation with her son's father (never married). It's an ugly situation and child services have been called on X's mother... I don't know what the issues are but I know it hasn't been dismissed yet... a worker has been to the home on a couple of occasions. I know that X's mother makes poor decisions in life but I know that DS will not be in harm's way if he is watched by her at our place. She'll also be bringing her mother who is in her 80's whom she cares for. I guess I'm worried that if things get ugly and I have to fight her in court that any reasons I have would be nullified because she's been to our home to watch DS -


4) Right now (until we move out) I get DS on Saturdays and X gets him on Sundays (today). I know that X kind of fades in to the background and lets family take over with DS so that he can get a break (not that he needs one - I do most of the parenting, he does most of the fun and games). Also, I know that his mother will take over many times when he has DS. I'm pissed about the fact that I will miss out on time with DS (and that DS will have to do all this extra commuting - we'll be a few cities away from each other) so that X's mother can get time with him. Can you give me information about the "right of first refusal" clause? How will I know that X is not with DS? How is it enforced?


Thanks for reading and for any possible input.

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#2 of 9 Old 08-22-2011, 03:48 PM
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Honestly I would check with a lawyer. Many do free consultations. These things can very between states and cities.


I know in my case XH ran a home based business and watched dd while I WOH. I was told it could have hurt me with custody because it made him look like the custodial parent even though we spend about the same amount of time with dd. Every lawyer I talked with said put her in daycare. They also said that leaving my dd with anyone that I didn't feel was safe would come back to bite me from a custody perspective.

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#3 of 9 Old 08-23-2011, 08:19 AM
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custodial parent is one with whom the child has the most time with. so i think ur ex or mil watching him will go against your favour.


yeah i'd need to talk to a lawyer. 

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#4 of 9 Old 08-23-2011, 10:16 AM
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Sounds like you have a plan in place, but how much of it depends on X's ability to be reasonable?  Unfortunately you can't count on X to honor any verbal agreements that you make now about custody, the terms of separation, etc.  What makes sense to you (cosleeping, EBF) may not hold much weight in court if he decides to pursue custody, and that could happen for a variety of reasons (financial, emotional rather than practical, even the desire to punish).   Hugs to you, mama.  These are hard decisions.

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#5 of 9 Old 08-27-2011, 06:08 AM
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Do not move out until you have custody and a parenting plan in place that is signed off by a judge (without a judge's signature, it is not enforceable).  If you do move, he can file to have the child returned to the family home, temporary custody and exclusive use of the family home.  And given that he works from home, he would be able to make the argument that his schedule is more flexible and will allow him to spend more time with the child.


You could put the child in daycare, but he would be within his rights to remove the child from daycare.  Probably best to consult with an attorney get the ball rolling on custody and a parenting plan.

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#6 of 9 Old 08-28-2011, 09:55 AM
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I concur with everyone who says talk to a local lawyer. There is a lot of law out there about time spent with the children...I know that time spent with the children (and proof thereof) counts A LOT in determining who should be the custodial parent in some states.



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#7 of 9 Old 08-29-2011, 11:07 PM
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I had a horrible divorce, and the custody stuff was resolved fairly early.  Keep strategy in mind if "X and his mom can get very ugly" is real. I can relate to that, so watch your self, and document everything.  I'm not kidding: keep a journal. Carry it in your purse and jot notes about neglectful decisions happen on his part.


In my situation in Oregon, my attorney told me - in no uncertain terms... DO NOT leave the family home. Not even with the kids. So, I had him court ordered to leave after I filed for divorce. I was also careful about leaving the kids in his care while they were awake.  I did take alone time (at the gym) while he was here and kids were asleep, but it was a grey area that I chose to do... I made clear decisions about religion (took them to a new church). Education (communication with teachers, got kids in to see the school counselor). Health (be the one to take kids to the doctor).  These are the items that matter with custody, and I won sole custody. (which is unusual here)


Custody and parenting time are different matters here. Parenting time - you can find templates for this via google. It's just an organization of the kids' time.  I wrote our entire one - again showing that I'm the one engaged in the kids. He edited it a bit. However, he's likely to push for more time if a lawyer is advising him. Mine got me to push, too.  Honestly, in that piece, the kids win. 


There are lots of blogs about custody and parenting time. They are different issues here, for sure. Parenting time also affects child support, so just get to know the rules. 


I think the fact that DS is nursing will make most things fall in your favor regarding parenting time, and I'd argue custody, too. Be sure you are the one interviewing care providers, narrowing it down, and even choosing. 

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#8 of 9 Old 08-31-2011, 11:24 AM
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Hugs mama... i had an ugly custody battle that lasted years... Good luck to you. Consult a lawyer and don't do anything just to be nice and smooth things over.




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#9 of 9 Old 09-01-2011, 06:33 AM
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Yes it would hurt your case. If you are aware that his mother has an open CPS case against her and you have no clue what the charges are for then you should not be allowing her to care for your one year old baby. Regardless if your ex is there or not.

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