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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12620
Experience:  Attorney experienced in all aspects of family law
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My husband and I are getting a dissolution. Our son was born

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My husband and I are getting a dissolution. Our son was born before we got married, with my now husband singing an acknowledgement of paternity at his birth. Because he was born before we were married, would I be able to legally get full custody with him having visitation?

Brandon M. :

Hello there.

Brandon M. :

Good afternoon.

Customer:

Hello, how are you?

Brandon M. :

I'm ok, thanks for your question.

Brandon M. :

I wanted to engage you in the chat because this seemed like a question that might need further discussion.

Customer:

Thank you for answering! Ok.

Brandon M. :

The short answer is that the time of a child's birth does not have any impact on the parents' right to custody--whether before, during, after, or outside marriage.

Brandon M. :

Neither parent is presumed to have a superior right to custody based on marital status at the time of birth, nor is either parent presumed to have a superior right to custody based on gender.

Brandon M. :

Child custody is determined based on the best interests of the child. What is best for the child is going to vary from child to child.

Brandon M. :

Functionally, it's more common that the mother gets more custody or sole custody simply because the mother is usually the primary caregiver. If one parent has been the primary caregiver for the child before the custody order, it seldom makes sense to change that arrangement in court.

Customer:

I'm really wanting to know if this guy is being completely truthful, or if he is trying to present things in a way to be in my husband's best interests entirely, even though we pretty much had an agreement in mind prior to seeing him. He agreed on me having custody and Him having visitation, but his attorney talked him out of it in favor of shared parenting. I'm guessing because he would have to pay less child support and it would be "easier".

Customer:

Our son has been with me since he was born, my husband did not live with us for most of his first year of life. He has a night job, and he admittedly has some psychological issues that I feel are keeping him form making decisions that are based on our son's best interests.

Brandon M. :

That's a good question, and it could be a little of both--he's definitely going to present things in a way that is in your husband's best interests, but that doesn't mean he's not also being truthful. I can tell you that sole custody is rarely granted; unless there is some compelling reason that one parent should not share custody, the court is usually not going to give it because it's usually in a child's best interests to have frequent and significant contact with both parents. However, there are some lousy parents out there, and every situation is different, so there are certainly plenty of times when sole custody is best.

Brandon M. :

How old is your son now?

Customer:

He is 4 now. Our visitation agreement is very generous, he would see him almost daily to transport to and from school and to spend at least a couple hours with him before I get home from work. This would be in addition to seeing him one of the 2 weekend days. I want him to have a relationship with our son, I worry about him making bad decisions about who he is taking him around.

Brandon M. :

Based on that description, it sounds like he has a pretty significant presence in your son's life.


 

Brandon M. :

If there are problems under an existing arrangement, the court are very glad to make changes, but it has to be demonstrated that the existing situation isn't working out.

Brandon M. :

Does that make sense?

Customer:

He does, but he doesn't. He sees him everyday, but it's pretty much just the "in-between" times.... in between the babysitters and me getting home. He works until 4 am and doesn't get up until noon. I get up with him every day, put him to bed every night. I basically do everything for him, and always have. He's given him 2 baths in 4 years, if that tell you anything!

Brandon M. :

That does tell me something.

Brandon M. :

The bath situation actually says a great deal about dad's involvement. You said that dad's attorney is saying that you are not likely to get sole custody, but you haven't said what their offer is. What are they requesting?

Customer:

We don't actually have an agreement yet, that is still being worked out. We came up with one we both agreed on, went over it with the attorney, made a few alterations. The attorney was supposed to write it up the way we discussed. I requested a copy to go over, was met with resistance- and after reading knew why. It was not the way we agreed on it, and my husband claims that he didn't really read it and didn't know that there were parts were omitted or changed.

Customer:

They are requesting shared parenting. I wanted custody, with visitation. He didn't even make an attempt to get more than what I was offering and actually only wanted to have him two days a month on the weekends.

Brandon M. :

What does "shared parenting" mean to them?

Customer:

I believe that I an the "residential parent" but we have joint custody, maybe?

Customer:

I am... sorry about the typing.

Brandon M. :

It actually sounds to me like there's still a lack of clarity on what is being requested. There' s more to custody than just physical custody of the child--things like medical decisions, school enrollment decisions, summer camp enrollment, etc. are questions of legal custody; when one parent gets "sole custody", the other parent doesn't get to be involved in the decision making for any of those things.

Brandon M. :

The nuances of every situation are different, so this information should not be construed as complete or advice without consulting in person with counsel, but it is a VERY rare day that it is appropriate for a parent who only has visitation during "in between times" to get significant physical custody time--usually, it's something like one evening per week and every other weekend (all depending on the situation, of course). I can understand wanting to be involved in the legal decision making and that won't affect child support, but if "shared" parenting means anything that even remotely resembles a 50/50 custody schedule, no court would typically entertain that proposal.

Customer:

Are there two types of custody? I would like to have more control over where he is taking our son. I don't have a problem sharing legal decisions, etc. I don't want him to be able to take him into an environment that is not going to be good for his well being.

Brandon M. :

The court can make whatever custody order is best for the kid, and that can mean legal custodial decisions for some things, but not others. Tell me what you mean by more control over where he is taking your son?

Customer:

He makes decisions based on what HE wants. and what he feels is going to upset me the most, it seems. NOT what is best for our son.

Customer:

Our son is experiencing behavioral issues, some that were starting to become apparent before the problems with us started intensifying. And some that have come up in the last month or two as thing have become more stressed in the house, and my husband has starting having "outbursts" in front of our son. (yelling, grabbing, spanking, cussing at me, yelling at me, etc)

Brandon M. :

I recommend that you find out specifically what it is that he wants--both in terms of physical custody time/visitation. Then, decide what is acceptable to you. If he won't budge on what you know is wrong for your son, then you really need to consider "fighting" for it. I recommend having any final offer examined by counsel, but your son is too important to not fight for his best.

Customer:

We made some verbal agreements on who we would and wouldn't allow him to be exposed to, including agreeing that it would be confusing to our son if we starting taking him around members of the opposite sex. And of course, now that he has moved out (and into the house of the woman that contributed to the end of our marriage) he wants to start taking him there for overnight visits. I don't want him to do that. Our son hasn't stayed a night away from me, and does not do well in strange situations. I am trying to appeal to his common sense and rreind him of what's in the best interest of our child, but if he fights me- I want to know what my options are. If I have any.

Customer:

Our 4 year old son has started carrying his blankey around.... he's never done that before. He's seriously insecure, and I don't want him to be exposed to any situation that could become volatile or that would create any more confusion or acting out.

Brandon M. :

Well, with regard to options, Option A would be that you could stay together in the same house and raise your son together. Option B would be that you live separately, but you cooperate and agree with what is best for your son. If you can't reach agreement, then your option is Option C--going to court and letting the court decide what is best for your son. It's definitely not ideal, but that's the hand that you've been dealt, and you have to try to get the best outcome under the circumstances based on that hand.

Customer:

Well- since option A isn't happening, I'm hoping for option B. But if option B doesn't happen, I will "fight" for what is right for our son. I appreciat.

Customer:

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Customer:

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Customer:

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Customer:

Appreciate your advice. Sorry, my son decided to help me type. :)

Brandon M. :

lol

Brandon M. :

I have a 5 year old... I understand :-)

Customer:

Just woke up from nap. He's ready for round 2 today.... non stop energy. I wish I had it! Well- thanks again, I appreciate your help. Have a great day!

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