I think I should get custody? Please give adivse

[patrenhack]

My wife told me April 22nd that she was uhappy (no prior notice). She moved out ~ 2weeks later into an apt with a 1 year lease in the next town (different scool district).

She told me we would have joint custody.

She only sees them maybe 20% of the time. I have been keeping track of the time.

I think I am eleigible for custody (and child support). I am in the house with the 2 children and their 5 pets. We live 2 houses from the bus stop.

I am the one taking the kids to little leage and scouts and PTA stuff.

Should I just go to Family Court and apply for custody and child support or should I get a lawyer. Of course money is real tight and a lawyer wants $5K up front.

[janM]

You are doing all the right things.

File for custody (and divorce?) and a restraining order from her taking them out of their home (she has just as much right to them as you do at this point). You have had them for a month, which establishes a status quo. They should not be moved.

You can file first and then get a lawyer, which you should have. Beg, borrow or sell to come up with the money. Interview a few and try to find one who is father-friendly and definitely a Family Law attorney.

Read the Articles section on this site, especially Tips for getting started, and first aid for divorcing dads. Also The List.

This is the best resource you will find in your situation. And I hope you realise how lucky you are that she left the kids with you. In the family home no less!

Come into chat sometime and keep us posted here.

[patrenhack]

THANKS!!!

Should I get a lawyer 1st or go to family court myself or both?

Although she only sees the kids 20%, last night my daughter was up sick and called the Mom. My wife (the mom) came over without notice at 3am. I asked for a curtousy but that became a fight. What are my rights?

[kiddosmom]

Why are you even on the computer? Run do not walk to a lawyer.
Go through and talk to several, get a bull dog FAMILY LAW one. Ask for everything the other poster advised.

[NeverGiveUp]

I waited, I lost.  Sit there and hope things will work out or that your X will be resonable and you'll get burned bad.  As soon as she realizes the mistake she's made she'll be back in the house and your fight will be all uphill.  In the end you'll lose and if you think moneys tight now wait till family court gets finished with you.  

You have a chance few ever get and most blow if they do.  Don't be another one . . . RUN! FAST! NOW!!!!!

[Lawmoe]

Custody is based on the totality of the circumstances and what is in the children's best interests.  How you present your case can be critical to that determination so it is important that you understand the process.  I would suggest hiring an experienced lawyer to help you navigate this maze.  
 
In most counties when there is a custody dispute, the Court appoints a custody evaluator. That evaluator may work for Court Services or may be a private individual or attorney called a Guardian Ad Litem. In a "Custody Evaluation" an evaluator meets with the parties and evaluates the custody issues based on the factors for determining custody that are spelled out by you state Statutes. Once the custody evaluation is complete the evaluator submits a report to the Court which will recommend a custody and visitation schedule that the evaluator believes is in the child's best interests.  
 
This report is a critical element of your case. Although custody studies may be challenged in court, many Judge's defer to the recommendations of the evaluator because, unlike the parties, they are deemed to be an independent witness without any personal Interest in the outcome. As a result how you relate your case to the evaluator is very important.
 
STANDARD FOR GAINING CUSTODY  
 
When custody is being determined for the first time, the Court must determine what is in the child(ren)'s best interests. To determine what is in the child(ren)'s best interest, the court weighs factors that are set out in your state Statutes.  Some ideas of what you must demonstrate appear at the bottom of this post.  
 
WORKING WITH CUSTODY EVALUATORS  
 
In most cases, a custody study will be carried out by county workers or an independent Guardian Ad Litem. The custody evaluator will create a report regarding what he/she believes is in the child(ren)'s best interests. "Best interests" of the child are magic words in custody proceedings since that is the standard that is used to make custody decisions.
 
The custody evaluator often has broad power to require psychological testing, chemical dependency evaluations and urinalysis tests. How you interact with the custody evaluator may be a critical element of your custody case.  
 
Custody evaluators will oftentimes make you believe that they agree with your side of the case. This is done so that you drop your guard. Never assume that the evaluator's report will favor your position.  
 
Custody evaluators are also people. That means they react to personalities. You are best able to present your case to an evaluator if you appear open and honest.  

Do not argue with the evaluator. Make eye contact and listen when they speak. This establishes a connection. It may help to nod your head as they speak even if you disagree with what they are saying. When you disagree, tell them "I see your point, but..." or agree first "I agree, but would you consider this to be important...."  
 
The custody evaluator does not care about good guys and bad guys. The evaluator cares about what is in the "best interests of the child(ren)." To relate your case to the evaluator, you must speak his/her language. Your statements must relate in some way to what is best for the child not the parent. For example, the statement, "my husband drinks too much", is incomplete. It does not relate how the drinking affects the child(ren). Always relate how the conduct affects the child(ren). A better statement would be:  

"My husband drinks too much. Because of that, he is rarely home and when he is, he is:.... abusive....spends little quality time with the children....is unable to help the kids with their homework...."
 
Provide the evaluator with the documents supporting your statements.  
 
Provide the evaluator with the names of collateral contacts, people who are aware of your strong points as a parent and the other party's weak points. (It is usually better not to include relatives as part of your contacts since they may have a bias).  
 
ALWAYS ASSUME when you go to court or visit a custody evaluator that you may be ordered to provide a urine sample for testing to determine if you have used drugs or alcohol.

CUSTODY STUDY ELEMENTS  
 
Although each custody evaluator may have a slightly different approach to performing custody evaluations there are some things you should expect :  
 
(1) Initial Interview with Evaluator. At the initial interview, the evaluator will discuss at length the past history of care with the child. The evaluator will attempt to determine who was the primary caretaker. BE PREPARED! At the initial interview arrive prepared with a chronology of events clearly set out.  
 
(2)Parenting Plan.  The evaluator will ask you what parenting plan you believe is best for the children. Have a specific schedule in mind before you meet with the evaluator.  In fact, I would suggest have several options.  It is important that you are able to support your proposal.  Be prepared to answer why the schedule you offer benefits the children.  
Home Visits. The evaluator will make at least one home visit to watch you interact with your child(ren). The evaluator is watching to see:  
* Engage the children. the evaluator is watching to see if you actively play with and interact with your child (It is a good idea to engage you children in an activity before the evaluator arrives at your home. By doing  this the activity will seem more normal and minimize the presence of the evaluator.  You should involve yourself with the the children in the activity. Do not simply act as an observer.)  
* Set Boundaries.  The evaluator is also watching to see if you set appropriate boundaries for the child and whether the child obeys those boundaries.    
* Discipline.  The evaluator is also judging the form of discipline that you use.  As a general rule corporal punishment is frowned upon. The use of time outs or deprivation of activities is viewed favorably. Try not to shout at your child and do not use inappropriate language.  
* Child's reaction to the parent.  The evaluator will also try to make an assessment of emotional bond between the parent and child.  Does the child call you "mommy" or "daddy."  Does the child seek physical interaction.    
* Home Environment. The evaluator is also reviewing the physical environment. Is the home clean? Is it safe?  Remember to put away and alcohol containers, empty the garbage and clean.  (3) Collateral Contacts. The evaluator will ask for a list of persons that you think the evaluator should contact. Family members are usually not good contact since they may be biased in your favor. Where possible use independent contacts such as counselors, daycare providers, and school teachers.  
 
(4) Alcohol Assessments. Where there are allegations of alcohol or drug abuse, the evaluator may refer you to a counselor for a chemical dependency evaluation. It is important that you cooperate in that process.  
 
(5) Psychological Evaluations. Where there are allegations of emotional or anger problems, the evaluator may refer you to a counselor or psychologist for a psychological evaluation. It is important that you cooperate in that process. Make sure that you communicate with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required. A failure to cooperate will appear in the evaluation.  
There are certain things that evaluators look for in their custody evaluation. You should discuss these issues with the evaluator truthfully since the evaluator will, to a degree, assess your credibility.

The issues you should be prepared to raise are the following:  
 
(1) Primary Caretaker. Where has the child lived since birth? What was the extent of contact each parent had at each phase of the child's life? What responsibilities did each parent have? The best way to support the contention that you provided care for the minor child is through independent documentation. The other parent will no doubt contradict your assertions that you provided much of the care. Independent documentation may include:  
 
* Daycare or school records demonstrating drop off and pick ups or attendance at parent-teacher conferences. Even if you do not have documents demonstrating attendance at school functions at least verify the dates of the conferences and familiarize yourself with the daycare provider's or teacher's names. The more information you are able to provide in that regard the more credible you will appear as an active parent.  
 
* Medical records may document which parent brought the child in for a medical or dental appointment. If you can acquire these records prior to meeting with the evaluator, do so.  
 
* Homework assignments or report cards may require a parental signature before they are submitted at school. That signature may provide independent verification that the parent reviewed or was actively involved in the child's schooling. Wherever possible acquire and retain these documents. Provide them to the custody evaluator to support your claims that you were actively involved in the child(ren)'s schooling.  
 
* Be able to relate who the child(ren)'s friends are and what activities they enjoy in detail.  (2) Stability. The evaluator will be interested in which parent is able to provide the greater stability for the child. Stability includes a stable residence and a stable job. You may wish to document the ways in which you have provided greater stability in the past. You obviously will not emphasize those areas that do not favor you.  
 
 To effectively present the areas where you have provided or are able to provide more stability, you may wish to create a detailed charts. Visual aids help to present a clear picture to the evaluator. For example you may wish to create a chronological chart regarding each parent's residence and how many times the child has changed residences or schools. You may also wish to create a summary of each parent's employment to demonstrate stable financial circumstances. Independent verification is also very helpful. Where possible, you may wish to procure documents demonstrating residence changes such as leases, purchase agreements or real estate taxes.
 
(3)Endangerment or Neglect. If you are raising issues of endangerment you must relate specific incidents. Endangerment may be physical, emotional or developmental. A calendar may be helpful to document the dates of the incidents. Documentation can carry critical weight with this type of allegation. Documents may include:  
Medical reports documenting injuries from abuse or lack of supervision;  
Medical reports documenting complications because of neglect - health issues such as asthma from cigarettes smoke or lice from lack of hygiene.  
Police reports relating to police calls to the other parent's home;  
Any child protection reports;  
Counseling records for the child or the parent;  
The other parent's criminal or driving record;  
The criminal or driving record of individuals that have significant contact with the minor child(ren);  
School records may document attendance problems, school performance problems, counseling issues or erratic child behavior while in the other parent's care or after returning from the other parent's care.  
 
(4) Parenting Plan. The custody evaluator will want to know what your proposal is for parenting. You should be prepared with research, facts and answers. You may wish to write out your answers to the following questions so that your response seems thought out. Do not over prepare, your response should not sound mechanical. The answers should include:  
Where will the child live? Why is that in the child's best interests?  
What school will the child attend?  
Why is that in the child's best interests?  
What will your work schedule be?  
Will that allow you sufficient time to supervise the child?  
What schedule do you propose for the other parents?  
How does that schedule provide stability?  
Why is that schedule in the child's best interests? (Remember: The custody evaluator is also looking at which parent is more likely to facilitate contact with the other parent. If you appear to be an unreasonable obstructionist with regard to the other parent's contact, it may be used against you.)  
 
For Minnesota information visit http://www.divorceprofessionals.com