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Will My Lawyer's suggestion work?

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asf

Junior Member
What is the name of your state (only U.S. law)? VA
My situation: live in different rooms of the same house with stbx and two year-old child. STBX has been sleeping together with child, and tried to isolate child from me.

My lawyer suggests that I should file child custody petition to court at first, asking to take care of child for two nights every week, in addition to alternate weekends.

She also suggests that I see marriage counselor by myself if STBX refuses to go together, so that I have a better position on court.

Will this work? I have spent all my spare time and weekend with child, but STBX works at home and spends more time with child.
 


mistoffolees

Senior Member
What is the name of your state (only U.S. law)? VA
My situation: live in different rooms of the same house with stbx and two year-old child. STBX has been sleeping together with child, and tried to isolate child from me.

My lawyer suggests that I should file child custody petition to court at first, asking to take care of child for two nights every week, in addition to alternate weekends.

She also suggests that I see marriage counselor by myself if STBX refuses to go together, so that I have a better position on court.

Will this work? I have spent all my spare time and weekend with child, but STBX works at home and spends more time with child.
What do you mean 'will it work'?

The lawyer's suggestions make sense, but without knowing what you're trying to accomplish, your question is meaningless. What are you trying to achieve?

How long are you planning to stay in the same house?
 

asf

Junior Member
What do you mean 'will it work'?

The lawyer's suggestions make sense, but without knowing what you're trying to accomplish, your question is meaningless. What are you trying to achieve?

How long are you planning to stay in the same house?
I want to get shared custody. Since my stbx has been trying to isolate me from the child, and sleeps with the child in the evenings, so my child looks for her every evening. My lawyer thinks first I need to break this pattern, before I file for divorce. Otherwise the court will more likely to grant the status quo.

So I want to settle the child custody before moving out and filing for divorce. I am not sure whether this works. Any input is welcome.
 

mistoffolees

Senior Member
I want to get shared custody. Since my stbx has been trying to isolate me from the child, and sleeps with the child in the evenings, so my child looks for her every evening. My lawyer thinks first I need to break this pattern, before I file for divorce. Otherwise the court will more likely to grant the status quo.

So I want to settle the child custody before moving out and filing for divorce. I am not sure whether this works. Any input is welcome.
You can file for divorce and ask for custody. If you will be in a position where you can alternate weeks (or find some other nearly equal physical custody arrangement which works for the two of you), then you can ask for 50:50 physical custody.

If that won't work for some reason, then one of you will have to have primary physical custody. The court most often awards that to the person who is the primary caretaker (unless there is some reason they are unfit).

If 2 nights per week plus alternate weekends is what you're looking for, then you can certainly ask for that. It's a fairly inconvenient schedule to maintain for the next 16 years, though. But, yes, if that's what you're looking for, then file for divorce and propose that as your parenting plan.
 

LdiJ

Senior Member
You can file for divorce and ask for custody. If you will be in a position where you can alternate weeks (or find some other nearly equal physical custody arrangement which works for the two of you), then you can ask for 50:50 physical custody.

If that won't work for some reason, then one of you will have to have primary physical custody. The court most often awards that to the person who is the primary caretaker (unless there is some reason they are unfit).

If 2 nights per week plus alternate weekends is what you're looking for, then you can certainly ask for that. It's a fairly inconvenient schedule to maintain for the next 16 years, though. But, yes, if that's what you're looking for, then file for divorce and propose that as your parenting plan.
I agree, but I think he wants that arrangement while they continue to live in the same house. I can't see that working. How do you make a young child understand that its daddy's night, or mommy's night when everyone is in the same house without totally frustrating and upsetting the child?
 

latigo

Senior Member
Sir, you need to find another lawyer!!!

The nature of your relationship with your spouse –good, bad or indifferent, DOESN’T HAVE A BLESSED THING TO DO WITH CHILD CUSTODY ISSUES. No matter how much money you spend with a marriage counselor.

Furthermore, the only way you can invoke the jurisdiction of a Virginia family court to rule on child custody matters is if those issues are raised in a divorce proceeding.

And until a competent court orders otherwise, each parent has equal rights to the custody and control of their minor children.

I don’t know whether what you are telling us comes directly from the mouth of your attorney or not, but if so then you are being poorly counseled.

Sax
 

mistoffolees

Senior Member
I agree, but I think he wants that arrangement while they continue to live in the same house. I can't see that working. How do you make a young child understand that its daddy's night, or mommy's night when everyone is in the same house without totally frustrating and upsetting the child?
I agree. I can't see any reasonable way to make it work. OP needs to file for divorce and request a custody/visitation plan, then move out and make it work.
 

asf

Junior Member
Sir, you need to find another lawyer!!!

The nature of your relationship with your spouse –good, bad or indifferent, DOESN’T HAVE A BLESSED THING TO DO WITH CHILD CUSTODY ISSUES. No matter how much money you spend with a marriage counselor.

Furthermore, the only way you can invoke the jurisdiction of a Virginia family court to rule on child custody matters is if those issues are raised in a divorce proceeding.

And until a competent court orders otherwise, each parent has equal rights to the custody and control of their minor children.

I don’t know whether what you are telling us comes directly from the mouth of your attorney or not, but if so then you are being poorly counseled.

Sax
Let me try to make it clear again. The reason my lawyer suggests that I file for child custody case at first is, she wants to break the current pattern, which is that the hostile STBX tries to alienate my daughter from me and sleep with her (she even told her lawyer I am a child sex abuser). So my lawyer's plan is to get two nights' custody for me, while we still live in the same house. Once this new pattern is established, I will file for divorce and hopefully I will keep the same custody.

My lawyer also encourages me to go to marriage counseling so that I establish a good position in front of the court.

I am not sure whether this plan will work. Since my STBX has a flexible work schedule and she works at home 3 days a week. Another lawyer I consulted said the most likely outcome is I have one day per week plus alternate weekends.

Actually I am trying to figure out whether my current lawyer is competent before I file my lawsuit...
 

asf

Junior Member
You can file for divorce and ask for custody. If you will be in a position where you can alternate weeks (or find some other nearly equal physical custody arrangement which works for the two of you), then you can ask for 50:50 physical custody.

If that won't work for some reason, then one of you will have to have primary physical custody. The court most often awards that to the person who is the primary caretaker (unless there is some reason they are unfit).

If 2 nights per week plus alternate weekends is what you're looking for, then you can certainly ask for that. It's a fairly inconvenient schedule to maintain for the next 16 years, though. But, yes, if that's what you're looking for, then file for divorce and propose that as your parenting plan.
The problem is, I don't see we can work out a parenting schedule without going to the court. My stbx has been trying to alienate me from the child. I want to figure out which way is better for me to get something close to a shared custody -- file divorce and ask for child custody together, or file for child custody at first, then divorce, as my lawyer suggested?

Please see my response to latigo above.
 

mistoffolees

Senior Member
The problem is, I don't see we can work out a parenting schedule without going to the court. My stbx has been trying to alienate me from the child. I want to figure out which way is better for me to get something close to a shared custody -- file divorce and ask for child custody together, or file for child custody at first, then divorce, as my lawyer suggested?.
I don't see how what you're suggesting could work. How do you file for custody when you're still married - and have not separated? In order to have a custody agreement, you need to have either filed for legal separation (in states which have that) or divorce. You can file your proposed custody plan with either of those.

Since VA doesn't have legal separation, living in the same house is likely a problem. In fact, you are required to live in a different household to consider yourself legally separated. http://www.lawhelp.org/documents/81281divorce.htm#2

You don't need an agreement with your spouse. You file for divorce and tell the court what you are proposing for a custody/visitation plan. Your spouse will get a chance to respond and propose her own plan if she wishes, but that doesn't stop you from making a proposal.

Bottom line is that the entire concept of filing for custody while still married doesn't make sense. File for divorce first.

AND, you need to deal with the sexual abuse allegations.
 
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LdiJ

Senior Member
The problem is, I don't see we can work out a parenting schedule without going to the court. My stbx has been trying to alienate me from the child. I want to figure out which way is better for me to get something close to a shared custody -- file divorce and ask for child custody together, or file for child custody at first, then divorce, as my lawyer suggested?

Please see my response to latigo above.
In addition to what Misto said, I cannot see any possibility of making a custody schedule work while you are living in the same house. That would be incredibly frustrating and confusing for the child if you attempted to actually enforce it.
 

asf

Junior Member
That's what my lawyer suggested. During our meeting, she showed me the draft of the court petition, but said she'd make the proposal to the lawyer of my stbx at first, and if they refuse, she'd file the lawsuit for custody.

I am considering to talk to another lawyer before starting the case. It's harder to change lawyers in the middle of the lawsuit I guess?
 

LdiJ

Senior Member
That's what my lawyer suggested. During our meeting, she showed me the draft of the court petition, but said she'd make the proposal to the lawyer of my stbx at first, and if they refuse, she'd file the lawsuit for custody.

I am considering to talk to another lawyer before starting the case. It's harder to change lawyers in the middle of the lawsuit I guess?
Not only is it harder, but its infinitely more expensive.
 

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