Could I get full custody?

[NSL]

Hello everyone,

I am fairly new to this, I’ll try to be brief. My husband previously had an affair and we worked through it, or so I thought. I had chosen to stay and forgive for the sake of the kids (now 5 and 7). I have come to find out that he has another girlfriend, so there is no hope for reconciliation.

I know that adultery has no bearing on CS, but I am wondering about custody. I am the one who meets with school officials, goes to school events, make sure homework gets done, and is home with the kids most of the time (evenings and weekends, we both work full-time). Not only is my husband a habitual adulterer, he also has some other questionable habits.

He has a part time job two evenings a week at a restaurant, in addition to his full-time job. I have the kids when he works. He typically stays around after his shift for a drink or two at the bar, and on weekends drives home after.

He also parties a few times a month, and has claimed to fall asleep at a friend’s house and not returned home for the night on more than one occasion. Of course, he knew I was home caring for the kids, so he was leaving them with a responsible adult. When he is woken early the next day from a Saturday night out, he is belligerent and verbally abusive to me. It’s never physical, just shouting and vulgar language. I have recorded a few of his tirades. For example, a couple of weeks ago we were having the girls baptized on the Sunday, and having people over to the house. He was supposed to just go out to a friend’s house for her birthday and ended up coming home drunk at 3 a.m. (he drove), and when I tried to wake him the next morning at the agreed-upon time to help me get the house ready for our guests, I received a barrage or insults/foul language, which I recorded. He does seem smart enough to never let it get physical. The girls were home, of course.

I am truly not looking for revenge for his adultery. Sadly, I think I fell out of love with him after his first affair, and at this point I only want what is best for the kids. He is not physically abusive, I am wondering if any of this will help me get full or majority custody of the kids. I am not looking for him not to have access or visitation, I just question his parenting skills.

Any advice would be appreciated.

[Berner_Faith]

Do you understand the concept of sole custody vs. joint custody? Custody is different then access.

Try doing a little research, because I feel what you are asking in your question, is not exactly what you mean.

[NSL]

I thought I understood sole custody as one parent having custody fo the children, living with them, making decisions on education, medical treatment, etc. I understood access my spouse being able to visit with the children, take them out, call them and see them, but that they would live with me and I would make all the decisions. Am I incorrect?

What I am looking for is sole physical custody, with (generous) access for my spouse.

[Berner_Faith]

Sole custody refers to important decision making...honestly, there really is no reason to even seek this, unless he truly is an incompetent parent... your posts indicates that you two had issues, but there are no indications he is a crappy parent... this may end up being a sticking point for him, because he has every right to be involved in important decisions in the children's lives.

As for access... where are your feelings coming from? Would YOU feel better having more access than him, or is this something that would be in the best interest of your children? You state you both have full time jobs, but also that your husband has another part time job, so maybe you have more time for the children, however you would need to prove why it is in their best interest to have limited time with their father. You should not play gate keeper and get to decide when the children see their father. Do this right and get an access schedule in place, 50-50 is by far the best schedule, unless dad is incompetent.

[Pursuinghappiness]

I think the question isn't "Could you get full custody?"..but "Should you get full custody?"

Aside from suggesting you currently take more responsibility for caring for the kids now..I'm not sure that you've demonstrated that he's an irresponsible parent. Its pretty normal during marriage for one partner to do more of child rearing while the other is doing more to earn an income. But now you're divorcing...and things change...and he might be willing to do less working and more parenting with your pending split.

Kids do better in every area of their lives when they have both parents. So if some of your desire for sole custody and inequitable access is coming from being angry at him...maybe you should reconsider and think about what is best for your children. You should love your kids more than you hate him.

I agree that it sounds like you need a divorce...but I'm not sure that you need to file for sole custody and inequitable access based on what you've posted.

I guess the first question would be...Do you even know what he wants in regard to custody & access? Does he want joint custody and shared access?

[HammerDad]

Could you? The totally solid and complete answer to that is......maybe...

You will have to provide evidence that having to make joint decisions would not be in the best interests of the kids. And by evidence I mean actual proof that you've done most the child rearing and that he is otherwise uninvolved and that by including him would be detrimental to the kids.

You also need to understand that sole custody only relates to decision making regarding medical, religion and educational matters. In case of an emergency medical situation, either parent can make decisions. For day to day matters each parent may make decisions relating to their own households.

It appears in your post that your ex was far from being an optimal parent. However, just because you and he didn't work, doesn't mean he is otherwise not a good parent. I didn't see any concerns from you relating to his parenting ability outside the drinking issue, which didn't appear to be child related.

Anyway, again, you may be able to get sole custody. It will all depend on the evidence both you and he give in relation to why joint will or will not work.

[Teddie]

I know that adultery has no bearing on CS, but I am wondering about custody. I am the one who meets with school officials, goes to school events, make sure homework gets done, and is home with the kids most of the time (evenings and weekends, we both work full-time). Not only is my husband a habitual adulterer, he also has some other questionable habits.

Adultery has no bearing on anything. My wife cheated on me and the first thing my lawyer told me was that I shouldn't even mention it in court as the courts don't care. It's also hard to prove if someone cheated.

My ex wife made very similar accusations to the one's you listed and she was not able to prove any of them in court. In fact, the judge completely overlooked them and never even addressed them. I'm not saying that in your case it didn't happen; but the onus is on you to prove it and that might be difficult.

[NSL]

Thank you HammerDad and Teddie for answering my question. Perhaps I may post another question discussing the merits of joint vs. sole custody, but for now I only wanted to know where I could find more specific information, i.e. case law, position papers, personal stories

I know the drinking in and of itself is not as issue. However, I am around to care for the children for the several hours before he wakes up hungover. But what would happen on the weeks when he has them? Should I be waiting to see if anything bad will happen? What happens when he doesn’t make it home one night and the babysitter has no idea what to do? I would love to think that he would stay home with the kids And as far so the comment that he might be willing to do less working and more parenting, I know it’s not the end of the world, but I should wait to see if he will start playing a role in their education, etc? Also, I feel I would be remiss if I did not mention that the second job is for his travel, partying and play money, it does not pay any household bills.

As I stated I do not plan to control or limit access, I just think his judgement is questionable and perhaps his decisions on education and other important matters might not be the best. He is fun and crazy with them (in a good way) and I agree they should spend a lot of time with him.

I have read a few posts here about joint to full custody and similar topics, and the responses seem much more helpful and far less judgemental. I wonder if that is because I am new here? Maybe I read the responses incorrectly?

[Berner_Faith]

It has nothing to do with you being new, it has to do with your reasons for wanting sole custody and your ability to prove it. We all understand you are new at this whole thing and your emotions are running wild, especially because of what he did, however that has no weight on custody/access.

You should maybe go back and read what those other posts were about, because I do find it hard to believe that posters would agree with sole custody because of an affair or because their ex partys a couple times a week.

[Pursuinghappiness]

I have read a few posts here about joint to full custody and similar topics, and the responses seem much more helpful and far less judgemental. I wonder if that is because I am new here? Maybe I read the responses incorrectly?

This forum tends to serve more than one purpose. Certainly one of them is to give you factual information towards divorce issues...but also, people give their opinions on the direction you're moving in. Sometimes, when you read the posts, they may come off as a bit harsh...but its a good litmus test because the people you're talking to here have often been through the system and know what questions the legal professionals you'll be dealing with ask...and they know how those same professionals process the evidence you present. So it behooves you to keep an open mind and not take the "questioning" as judgement but as a double-check of your initial going-in premise.

That being said, as per this:

I know the drinking in and of itself is not as issue. However, I am around to care for the children for the several hours before he wakes up hungover. But what would happen on the weeks when he has them? Should I be waiting to see if anything bad will happen? What happens when he doesn’t make it home one night and the babysitter has no idea what to do? I would love to think that he would stay home with the kids And as far so the comment that he might be willing to do less working and more parenting, I know it’s not the end of the world, but I should wait to see if he will start playing a role in their education, etc? Also, I feel I would be remiss if I did not mention that the second job is for his travel, partying and play money, it does not pay any household bills.

As I stated I do not plan to control or limit access, I just think his judgement is questionable and perhaps his decisions on education and other important matters might not be the best. He is fun and crazy with them (in a good way) and I agree they should spend a lot of time with him.

Consider a couple things.

You're in the middle of a pending divorce, which is the worst time to assess anyone's parental capability. And even if your assessment is 100% correct and he's got an alcohol problem which prevents him from parenting...what evidence do you have? Understand that for you to use this for an assessment, the bar is pretty high. People are allowed to go out, to get drunk, and to have hangovers. You'd have to prove that he has a consistent problem which impairs his ability to function and parent. Do you have that evidence? (Look up what evidence is...its not your opinion)

As far as their education goes, again...do you have evidence that he is unable to perform these duties? It may be that up until now he hasn't done them because you had defined roles in the home. However, that doesn't preclude that he CAN'T do them. Unless you have evidence, this isn't going to hold up. Do you have that evidence?

I think what you're missing is that you're not the gatekeeper or judge of his behavior. If you have evidence, you're in a much better position here...but I find that a lot of posters make these allegations and they tend to backfire.

My ex had never taken a day off from work when the kids were sick. He had never taken their temperature..or cleaned up puke...or taken them to the doctor. I could have gone into my custody assessor and said "What, should I just wait for one of them to die from an illness he can't take care of?"....however, I can tell you that that would have worked against me rather than for me. It looks presumptuous and controlling and it is.

By the way, my ex took the youngest kid to the clinic for the first time last month.

If you think you're going to get custody by lambasting your ex and making him out to be an incompetent, you're going to be SHOCKED when you get into this process. That does NOT help you..quite the opposite. I personally went through an 8 month long professional custody evaluation...so I'm not just talking out of my butt.

You are not the judge and jury here. Instead of showing why he shouldn't have equal custody/access...you should be showing why you should.

However, if you're in the forum to only get the opinions of people who side with your flawed initial position...its true, you're not going to like all of the responses...and it has nothing to do with your being new.

[NSL]

It has nothing to do with you being new, it has to do with your reasons for wanting sole custody and your ability to prove it. We all understand you are new at this whole thing and your emotions are running wild, especially because of what he did, however that has no weight on custody/access.

You should maybe go back and read what those other posts were about, because I do find it hard to believe that posters would agree with sole custody because of an affair or because their ex partys a couple times a week.

I never said that the posted agreed or disagreed, that is exaclty my point, they answered the OP question on how to go about getting the custody changed, and didn`t give their opinion on whether or not he should. I was asking if, based on anyone`s knowledge of legal precedent or personal story it was possible.

[NSL]

However, if you're in the forum to only get the opinions of people who side with your flawed initial position...its true, you're not going to like all of the responses...and it has nothing to do with your being new.

Actually, I was looking for information, or a link to such information, not for anyone to side with my (in your opion) flawed initial position. But thank you, I now know the purpose of this forum.

[HammerDad]

Just some food for thought.

Your STBX has been able to carry on their extra-curricular activities mostly because of you. You've enabled them by picking up the slack with the house and family. Once you are no longer there, that crutch is gone and they will have to do it themselves.

You are worrying too much about the "what-ifs". We are unable to tell the future and how our ex-spouses will act. Yours may carry on the same way, or they may clean up their act when the kids are around as they realize they have free time to do their thing when the kids are with you.

The reality is, you can't do anything until something happens. A judge won't likely care that you "think" the ex may act in a certain way or are worried that they may act in a certain way. Until the ex DOES act in a certain negative way, the courts won't interfere.

[Pursuinghappiness]

Just some food for thought.

Your STBX has been able to carry on their extra-curricular activities mostly because of you. You've enabled them by picking up the slack with the house and family. Once you are no longer there, that crutch is gone and they will have to do it themselves.

You are worrying too much about the "what-ifs". We are unable to tell the future and how our ex-spouses will act. Yours may carry on the same way, or they may clean up their act when the kids are around as they realize they have free time to do their thing when the kids are with you.

The reality is, you can't do anything until something happens. A judge won't likely care that you "think" the ex may act in a certain way or are worried that they may act in a certain way. Until the ex DOES act in a certain negative way, the courts won't interfere.

Extremely well stated...and very very true.

My ex tried the same tactic as the OP...even found some negative advocates I didn't know to help him corroborate his allegations. It blew up in his face.

Custody assessment focus on CAPABILITY...not past behavior. Professionals understand that have been bad family dynamics and previous parenting roles that will no longer apply.

However, I've also found when someone is controlling and hell-bent on exacting revenge using the kids...there's nothing you can tell them to sway them doing it...they just have to learn the very hard, very time consuming, very expensive way.

[NBDad]

I'll sum it up even better for you:

Someone can be a shitty spouse, but still a good parent.

CAN you get sole? Possibly. CAN you if the ex decides to fight you on that? Likely NOT, unless you can actually PROVE that his judgement places the children in danger.

Your likely outcome is JOINT custody with one of you final say on one or more of the following: education, religion, medical. Access dependent on how much the ex wants to fight you on it. If he pushes it hard enough, and plays his cards right, he WILL get 50-50, at least in the interim.

Here's the thing:

1. If he is unstable, he will melt down eventually. In which case, you document and make sure you are there when it happens. Basically if your concerns are warranted, eventually it'll happen and you can then leverage that to make changes if needed. Until you have actual proof, it's not relevant.

2. The de-facto standard upon a relationship breakdown is JOINT w/ 50-50 access. That's the law. It's also proven to be in the kids best interests.