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Roger, Attorney
Category: Family Law
Satisfied Customers: 31766
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I am in a custody dispute with my child's father. He moved

Customer Question

I am in a custody dispute with my child's father. He moved out of our joint home in January and the child has been left in my care with him seeing her every other weekend (he missed a couple in the first few months), then suddenly he's decided he wants joint custody of our daughter saying "this is what she wants". She's only 9 years old and I can't imagine she understands what joint custody would entail. He has no plan for getting her to school or after school activities at this time - well, says his girlfriend will do that. I've remained in the marital home, and have always been the primary caregiver for our child. I made all the day to day decisions regarding our child - daycares, I interviewed them and made the decision; dr's appts, I made them and took her; homework, my job; dance classes, my responsibility to arrange transportation and purchase supplies; when she was sick, I stayed home from work; school out days and holidays, I made arrangements or stayed home from work; pretty much everything was my job. Our daughter is established in our neighborhood - 75% of her friends live within a 4 block range of the house and she has no playmates near her father's new apartment. I'm wondering if I should continue fighting for sole physical custody. I've been told that my being the primary caregiver for the past 9 years will be a deciding factor for the judge; however, I have others saying that the 50/50 thing is being decided more often. Suggestions?
Submitted: 2 years ago.
Category: Family Law
Expert:  Roger replied 2 years ago.

Hi - my name is ***** ***** I'll be glad to assist.

If you've all been living under one roof, claiming that you are or have been the primary caregiver is likely a tough sell to the terms of gaining full custody because you've been under the same roof together. Had you been separated for this long and you had the child with you, then you'd be a shoe-in for full or primary.

Instead, absent some solid proof that him having joint custody would somehow be detrimental to the child - - which is fairly difficult to prove - - joint custody is the likely result.

However, it is still possible for you to be appointed as the primary parent, which is the person the child primarily resides with. That would mean the child would live with you the majority of the time, but the father would have joint custody and visitations frequently.

Customer: replied 2 years ago.
How could it be a tough sell? I am the person that made all those day to day decisions. He was always working - night shifts - and doing "odd jobs" on the weekends or working a PT job.
Expert:  Roger replied 2 years ago.

Because the father can claim that he was contributing as well, working hard to pay the bills, etc. to give you time to handle things with the child, etc. He's not going to appear as an absentee parent IF he was living in the same house.....instead, he's going to claim that he was simply handling different tasks than you were.

Expert:  Roger replied 2 years ago.

It'll turn into a he said/she said issue and will really develop into a situation where both parents think what each one did was more important than what the other was doing, etc., and the court isn't likely to get caught up in an issue like that. Instead, the court is more likely to consider that each parent was doing his/her share.

Customer: replied 2 years ago.
Ok I work too. FT day job. What about that he moved out over 7 months ago and told her she was going to live with mom and he would visit on weekends and he's missed a few of those? Doesn't that count for anything?
Expert:  Roger replied 2 years ago.

I'm not trying to get into who did more.....and that's sort of my point - - the court isn't going to want to do this either.

The court is going to do whatever is in the CHILD'S best interest, and absent some significant proof that him having joint custody would somehow be extremely detrimental to the child. You should have the upper hand in regard to being awarded primary custody given your role with the child (but it would be unlikely for him to be disallowed custody just because you cared more for the child than the father.

Customer: replied 2 years ago.
Ok. That's not what I was hoping you'd say since my mediator told me the exact opposite - that the judge would take into consideration who was the primary caregiver, but you've given me something to think about. I just don't feel it is in child's best interest since he's been an "absentee " patent even when he was home and I can totally see the new girlfriend now taking over the parenting role instead of him. But like I said you e given me something to think about.
Expert:  Roger replied 2 years ago.

I'm not saying that the judge won't consider it, I'm just saying that you being the primary caregiver isn't a "slam dunk" for gaining full custody of the child. Just don't put too much reliance on that point. Instead, work on proving that you are the best parent and that you should be given custody or at least be appointed as the primary parent.