What is the name of your state (only U.S. law)? California
Here is my situation.
I am a 35 year-old father of a 4 year-old girl.
My wife, 31 year-old, has been an alcoholic and drug addict for as long as I have known her. We live in San Diego, CA.
In January of 2010, she was arrested at night by the police for driving under the influence. My daughter was in the car, on the front seat without car seat or seat belt. My wife had a Blood Alcohol Concentration (BAC) of 0.18, over twice the limit in California. She spent the night in jail and was charged with the following counts:
- Count 1 DUI (VC 23152a)
- Count 2 DUI (VC 23152b)
- Count 3 Child Endangerment (PC 273a)
She went to a rehab treatment facility for 90 days. The treatment consists of a detoxification period, followed by an intensive in-patient program that includes therapy, AA meetings, classes etc...
Currently my wife is still in treatment but she will be released this coming Saturday (4/17/2010). We have both agreed that we want to get a divorce.
My reason is that I do not want to continue to live with a person that is a possible thread to my daughter. And also I have been very unhappy in our marriage.
Her reason is that she wants to focus on her recovery and thinks it is better if I am not around.
While my wife was in treatment, I hired a DUI lawyer. The judgment has not taken place yet. However, he has negotiated a plea bargain with the City Attorney in exchange for a guilty plea to Count 1 -- DUI (VC 23152a), to include the special allegation that a child under 14 was inside the vehicle.
That means that Count 2 and the more serious Count 3 will be dismissed.
I talked to my wife in the past few days. She is telling me that she wants to take custody of our daughter when she is released from treatment.
She told me that I can keep my daughter every other weekend plus one day per week during the work week.
She argues that she is a better provider for our daughter and that she can spend more time with her since she doesn't have a long commute like I do.
She works full time and she has decided to stay in a hotel near her work for a period of at least 3 weeks, until she can make other arrangements. She is not coming back to our house. Her driving license is suspended for 1 month which is the reason why she wants to live close to her work.
She told me that her Mom will help her taking care of our daughter during the day.
She made all these decisions regarding our daughter unilaterally. She did not consult with me and now she is telling me that this is the way it is going to be. She tells me that she will stay sober (though there is no guarantee) and she thinks she is entitled to get custody of our daughter just because she has completed her treatment.
I immediately told her that I will not accept to see my daughter on an average of 2 days per week. She refuses to make a compromise.
Both of her arguments for her decision do not make sense:
1) She states that she is a better provider: the initial child endangerment charge completely proves the opposite.
I am a loving, caring and responsible father. During the time my wife was in treatment, I spent 6 weeks with my daughter alone (she was with the grandparents the rest of the time) and I did a terrific job. Even my wife acknowledges that. I took care of everything by myself. I made special arrangements with my work to spend as much time as possible with her.
She goes to daycare during the day but we really bonded during the time she was me at home.
2) She states that, based on our work schedules, it is better that our daughter to be with her because she has more availability than me.
This is just not true. I have a long commute to my work (1 hour in the morning, 1 1/2 hours in the evening) but both of us work 40 hours a week.
In addition, I work from home twice a week (I am a software engineer and my company lets me to telecommute). Also, I can make special arrangements with my company to work an hour less on any given day if I work an extra hour on another day of the week. I have a lot of flexibility in my work which my wife doesn't have. Finally, I have 3 weeks of paid-time off a year and I will have 4 weeks in just a few months. My wife only has 1 week of paid-time off.
Until my parents-in-law took my daughter, she was going to day care 5 times a week in a private daycare facility that is half a mile from our house.
She is also supposed to start preschool in June and the school is one mile away.
Now my wife wants to move to a hotel room with our daughter and have her mother watch our daughter during the day. This doesn't make any sense at all.
In the long term, she wants to be the primary provider for our daughter and have her most of the time (71% for her VS 29% for me).
She is a recovering alcoholic and drug addict. One requirement after her treatment is completed is that she attends 90 AA meetings in 90 days. After 3 weeks, her Mom will be gone. How is she going to attend these meetings and focus on her recovery if she has our daughter with her?
Also, after one month, she will only get a restricted driving license that will only allow her to drive to work and to her AA meetings. What if my daughter has an emergency and needs to go to the doctor?
I can not comprehend how my wife is making child custody decisions by herself, after the things that have happened in our lives.
Her mother is completely on her side because she is in adoration with our daughter.
However, I think I have a right to be part of the decision making regarding my daughter's future.
For me, the perfect outcome is the following: I am trying to be fair to everybody and I want the best for my daughter. I strongly believe that my daughter needs me as much as she needs her Mom. I want to have share custody equally. That means my wife keeps my daughter 50% of the time and I keep her 50% of the time.
I strongly believe that I can take care of our daughter as well or even better than my wife. I am responsible and I have never put the life of our daughter in danger, unlike my wife.
So my questions are:
1) What are my rights?
2) How can I solve this situation? Do I need to meet with a mediator, or hire an attorney?
3) If we were to solve these issues in a court of law, what are my chances of getting half of child custody (50-50)?
4) Is there any aggravating factor against me in this case? Are there any action items I can take to improve my chances?
5) We are not divorced yet. Does it even matter right now?
Let me provide a little bit more of information regarding our respective situation:
- My wife and I have the exact same income
- I have no immediate family in the US. My wife's family is in the Bay Area, 500 miles away
- In the past, we have both recognized each other's ability to take good care of our daughter. I have plenty of written documents to support this.
- I have a very steady job. I have been employed by the same company for 8 years and in my recent performance appraisal, I was rated top quartile among all employees in my department. My wife has been struggling with her work (mostly due to her alcohol problems). In the past, she has been unproductive and has been coming to work late on a regular basis.
- My wife has help available (her Mom). I can also arrange for the same. My sister has agreed to come to help if needed during the transition period.
Finally, my last question is:
What if my wife and her Mom take my daughter to a hotel this weekend and the following days and I do not agree? What do I need to do?
Thank you so much for any help /advice.
What is the name of your state (only U.S. law)? California