Custody of child by separated parents?

[Father in Georgia]

This is a general question, and I understand that specific laws may vary from state to state.

My daughter is six years old. Her mother and I have been divorced for four years, but custody was never brought up in our court order. She has spent equal time with both of us, with the time favoring me for the first two years roughly 53% to her 47% (I have meticulously kept records since we separated).

However, the mother has become increasingly more aggressive about withholding the child from me, mandating terms and conditions in which I may  have access. In essence, she is behaving as if she has sole custody. She has grown increasingly bitter towards me and spoken ill of me to both the child and in public. The child has always clearly shown a preference to be with me, and as she gets older has become more vocal about her preference to her mother. Thus, he mother seems to want to interfere in our relationship in order to "break" her of me.

I have approached the mother numerous times about getting a court order of joint custody, but she insists "That will never happen!" She has refused counseling and now even basic communication. I am picking up my daughter today but the mother insists I return her on Sunday. I have NEVER denied the mother access to her child, although she has done so to me routinely.

For those who would scold me for not having a court order of custody clear from the start, let me point out that Georgia isn't a very father-friendly state. This mother is an extreme narcissist, and she made it clear at the time that if custody were mentioned, she would demand sole custody. I went along with it and now have an established history of being, at the very least, an equal caregiver. Otherwise, I would have been merely yet another every-other-weekend dad, which would have been devastating for both my child and me.

So, my question of course is: What IS the custodial situation of this child right now? Without a court order, it seems that we both have equal rights to the child, but how is it determined when one parent is possibly denying equal access to the other parent or merely excercising their own reasonable access. She has threatened to call the law in the past if I do no return her as she demands.

I am about to petition the court for sole custody on the basis that the default joint custody isn't working. I want to insure that BOTH of us have equal access to our child. But if she is unwilling to engage voluntarily in a joint custody order, then I see no other choice but to ask for sole custody (to protect my own relationship with the child) with liberal visitation for the mother. Obviously, she will counterclaim for sole custody, but I'll argue that we already have a long history of seeing how she iintends to deprive the child of her father. We're both decent parents, with the only real difference being that only one of us wishes for our child to have BOTH a mother and a father. (For what it's worth, I work completely within the home office while works outside the home. I changed my career specifically to be able to care for her directly. That is, in part, why we enjoy such a great relationship.)

Any insights or thoughts?

Thank you!

[Kitty C.]

She can call the law 24/7, but if neither of you have a custody order, she'd pissing in the wind.  the cops will have NOTHING to relate to and they don't want to get in volved in 'domestics' anyway.  They will tell HER to contact her atty.

Hope you're documenting all this and you also might want to use the Time Tracker available at this site, for free.  You need to PROVE in court just how much time your daughter has spent with you.  But NONE of this will be resolved until you go to court.

[Father in Georgia]

Thanks Kitty. While the courts are entirely unpredictable, would you care to venture a guess what they might think about this situation? That is, with her depriving me of access, would they be more likely to simply say "Well, that's what the child has become accustomed to?", or might they see that sort of alienation as not being in the child's best interest? (I guess, then, that if it's more likely to be the former, maybe I should be more assertive and withhold the child from her a bit, as well. Don't want to of course, but if it might otherwise be held against me later for not doing so...)

Thanks again!

[ksswthrt74]

IMHO,  Go file for custody while the child is in your care. I know you that you want to work it out between the 2 of you..but what makes you think, that she won't get a wild hair up her rear and go file for sole custody while the child is in her care?  

Then go from there with what you want.  That way the ball is in your court, and not hers.  And hopefully you can get it set up the way you want it..and for the best interest of the child.

Get a lawyer..and file for Custody NOW!!!!!!!!!!!  Especially when the child is with you.

[NJDad]

Hi Guys,

I agree with ksswthrt74. The primary residence is where the kids stay the most. But, have the kids at your house when you start filing papers.

It just shows that some people just can't maintain their composure. Also, It's just going to get worse. Your Ex is probably asking for tips on how to take the kids from you as we speak.

Also, see my reply from the Father's Section regarding Recording Phone Calls. It's going to get really ugly in the next few weeks, protect yourself and stay out of jail.

W