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Attorney & Mediator
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Category: Family Law
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Experience:  Attorney & Certified Mediator
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Can I get full custody of my son

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I have a situation that needs to be answer. I have joint custody of my son. I am currently deployed and my parents were granted temporary custody while I am gone. They are basically taking over my visitations rights. While in court my ex didn''t want this to happen and she expressed it. Well, all I was fighting for is more time with my son, who is turning 1 Feb, 2008. Well I just found out that my ex is pregnant. The thing is that the man she is pregnant by is married and the wife doesn''t know it. They wife and my ex have know each other for a while. I know the man and when I was with her, I didn''t like him. There was something that was going on and couldn''t prove it at the time. I don''t believe that she will teach my son the right and wrongs of life. She lives with her mother and they believe that its ok, because if they want to be together it doesn''t matter if he married. Can this be a strong enough case to get custody of my son. The way my son will be raised is my main concern.
Submitted: 9 years ago.
Category: Family Law
Expert:  Attorney & Mediator replied 9 years ago.
Well the mere speculation that the mother will not teach him right from wrong will not be persuasive to give you sole custody of your child as this is mere speculation and a belief, and the law does not work on speculation.

However, you do have grounds to file for a custody review hearing on the grounds that the mother is engaged in an adulterous affair, which clearly shows that the mother is unable to make the right choices for herself, let alone for her child and the new baby she will be having. The judge will have to review whether this relationship is currently affecting the child's well-being, given that he is of such young and comprehension is not full developed. The fact that you are deployed will also be an issue to consider because stability and a relationship with their parents is key here. Some courts find it necessary that the child be placed with a parent, who can meet the child's daily parenting needs. Although I cannot predict the outcome of your case, I know that you can petition the court for a review hearing to address issues of custody as the mother is not making wise decisions in having this affair, but before the judge makes a decision, the judge will look at the current family dynamics and if the child will still benefit from being placed with his mother versus being placed with relatives who are not his parents.

In North Carolina the court looks at the following factors in addressing custody issues:

The court determines the child's best interest based on the following factors:

  • Acts of domestic violence between the parties
  • The safety of the child
  • The safety of either parent from acts of domestic violence against the other parent

When considering custody, the court can consider all the things that might affect the child physically, mentally, emotionally, morally, and spiritually. Though each Judge may weight factors under consideration differently, the primary factors under consideration include the:

  • Abductions, child abuse, and neglect
  • Age of the child
  • Facilitation of visitation and involvement of the other parent
  • Home environment
  • Legal complaints filed against either parent
  • Parental drug and alcohol problems — current and history
  • Parent's competency, time available to spend with the child
  • Parent's non-marital sexual relationships
  • Parent's willingness to keep the other parent involved in the child's life, or efforts to undermine the other parent
  • Presence of siblings and their relationships to the parents and each other
  • Relocations, such as moves out of state
  • Preference of the child [generally from age 10 and up]
  • Religion

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