Mother seeking Child Custody. What are my options?

[jkleinsrc]

Hello,

My Husband filed for divorce and we have one Child, 10 Months Old. I live in NJ.
I was going to file for divorce anyways due to several issues, but to my surprise he filed for Divorce First.

After i received the notice for divorce, i left the marital home and started living with a friend for few days as i didn't wanted to spend a single night with that guy. Thereafter i got a rental place where i shifted to. I hired an attorney and asked for parenting time with my child. I am getting 2 Overnights a week and some time during days.

My Husband's attorney claims he is the primary caregiver and i just get visiting rights. They have also filed for custody in the divorce application.

There were no restraining orders, no incidents of domestic violence, no mental illness etc on both the sides.

Few people tell me that Court will likely grant shared physical custody and not grant you complete custody if you do not have any evidences against your husband is also seeking custody. Whereas few people tell me that since i am a mother, i will be granted Primary Custody.

If i want complete custody, what can i do?

 

[Ohiogal]

Hello,

My Husband filed for divorce and we have one Child, 10 Months Old. I live in NJ.
I was going to file for divorce anyways due to several issues, but to my surprise he filed for Divorce First.

After i received the notice for divorce, i left the marital home and started living with a friend for few days as i didn't wanted to spend a single night with that guy. Thereafter i got a rental place where i shifted to. I hired an attorney and asked for parenting time with my child. I am getting 2 Overnights a week and some time during days.

My Husband's attorney claims he is the primary caregiver and i just get visiting rights. They have also filed for custody in the divorce application.

There were no restraining orders, no incidents of domestic violence, no mental illness etc on both the sides.

Few people tell me that Court will likely avoid shared physical custody and not grant you complete custody if you do not have any evidences against your husband is also seeking custody. Whereas few people tell me that since i am a mother, i will be granted Primary Custody.

If i want complete custody, what can i do?

Why should you get primary custody? Your uterus is not magical. You being mom means nothing more than him being dad. You left the child WITH your husband thus telling the world he is a fine parent. Why shouldn't there be shared custody?

 

[Ladyback1]

Hello,

My Husband filed for divorce and we have one Child, 10 Months Old. I live in NJ.
I was going to file for divorce anyways due to several issues, but to my surprise he filed for Divorce First.

After i received the notice for divorce, i left the marital home and started living with a friend for few days as i didn't wanted to spend a single night with that guy. Thereafter i got a rental place where i shifted to. I hired an attorney and asked for parenting time with my child. I am getting 2 Overnights a week and some time during days.

My Husband's attorney claims he is the primary caregiver and i just get visiting rights. They have also filed for custody in the divorce application.

There were no restraining orders, no incidents of domestic violence, no mental illness etc on both the sides.

Few people tell me that Court will likely avoid shared physical custody and not grant you complete custody if you do not have any evidences against your husband is also seeking custody. Whereas few people tell me that since i am a mother, i will be granted Primary Custody.

If i want complete custody, what can i do?

Your soon to be Ex's attorney is correct. Out of 7 nights a week, you have the child TWO. You left the marital home without the child, thus abandoning the child--and Dad is the primary caregiver.

The court will look at both of you, and determine what is in the best interest of the child.
Why didn't you either stay with the child in the marital home (and tough it out until the divorce was final), or take the child with you?

 

[Ohiogal]

Your soon to be Ex's attorney is correct. Out of 7 nights a week, you have the child TWO. You left the marital home without the child, thus abandoning the child--and Dad is the primary caregiver.

The court will look at both of you, and determine what is in the best interest of the child.
Why didn't you either stay with the child in the marital home (and tough it out until the divorce was final), or take the child with you?

Technically and legally she did NOT abandon the child.

 

[Ladyback1]

Technically and legally she did NOT abandon the child.

I know...I just can't imagine walking away from my child(ren) at 10 mo. old (granted there have been times when I've wanted to run away from the teenagers they have grown into....but, I didn't and don't!)

 

[latigo]

Why should you get primary custody? Your uterus is not magical. (yuk) You being mom means nothing more than him being dad. You left the child WITH your husband thus telling the world he is a fine parent. Why shouldn't there be shared custody?

You don't understand why conscientious family judges tend to "avoid" awarding shared physical custody?

Perhaps you might ask a child psychologist.

And by the way, neither are the testicles "magical".

 

[Zigner]

And by the way, neither are the testicles "magical".

...and if dad were here, that's how we'd respond.

 

[TigerD]

And by the way, neither are the testicles "magical".

Speak for yourself.

DC

 

[Ohiogal]

You don't understand why conscientious family judges tend to "avoid" awarding shared physical custody?

Perhaps you might ask a child psychologist.

And by the way, neither are the testicles "magical".

Well the Supreme Court of New Jersey disagrees with you in that joint custody is favorable in some situations. OP hasn't stated why she believes she should get custody and not have joint/shared custody. And you don't know why she thinks there shouldn't be shared custody either, now do you?

Beck v. Beck, 432 A.2d 63, 86 N.J. 480 (N.J. 1981)
Supreme Court of New Jersey
July 2, 1981
432 A.2d 63
86 N.J. 480

The question of whether a trial court may make a sua sponte custody determination need not long detain us. The paramount consideration in child custody cases is to foster the best interests of the child. This standard has been described as one that protects the "safety, happiness, physical, mental and moral welfare of the child." Fantony v. Fantony, 21 N.J. 525, 536, 122 A.2d 593 (1956). See also N.J.S.A. 9:2-4 ("(T)he happiness and welfare of the children shall determine the custody or possession.") It would be incongruous and counterproductive to restrict application of this standard to the relief requested by the parties to a custody dispute. Accordingly, a sua sponte custody determination is properly within the discretion of the trial court provided it is supported by the record. However, we emphasize again the desirability of the trial court giving the parties an opportunity to address any new issues raised by the court. See supra at 67 n. 4.

Then:

A

First, before embarking on a full-blown inquiry into the practicability of a joint custody arrangement, the court must determine whether the children have established such relationships with both parents that they would benefit from joint custody. For such bonds to exist the parents need not have been equally involved in the child rearing process. See Bratt, supra, 67 Ky.L.J. at 296. Rather, from the child's point of view it is necessary only that the child recognize both parents as sources of security and love and wish to continue both relationships.

Having established the joint custody arrangement's potential benefit to the children, the court must focus on the parents in order to determine whether they qualify for such an arrangement. At a minimum both parents must be "fit" that is, physically and psychologically capable of fulfilling the role of parent. Miller, supra, 13 Fam.L.W. at 369. In addition, they must each be willing to accept custody, see Bratt, supra, 67 Ky.L.J. at 303, although their opposition to joint custody does not preclude the court from ordering that arrangement. Rather, even if neither party seeks joint custody, as long as both are willing to care for the children, joint custody is a possibility. [9]

The most troublesome aspect of a joint custody decree is the additional requirement that the parent exhibit a potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents [432 A.2d 72] may harbor. See Folberg & Graham, supra, 2 U.Calif.D.L.Rev. at 550. Moreover, the potential for cooperation should not be assessed in the "emotional heat" of the divorce.

If the parents outside of the divorce setting, have each demonstrated that they are reasonable and are willing to give priority to the best interest of their child,
then the judge need only determine if the parents can separate and put aside any conflicts between them to cooperate for the benefit of their child. The judge must look for the parents' ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. (Id. at 580.)

And yes, it is still binding precedent. So my question stands. Why shouldn't there be shared/joint custody according to this OP?

Oh and I note, Latigo, the edit you did in my quote. I also understand that you don't practice law or at least don't appear to do so therefore I don't believe you actually have a lot of experience in DR/custody cases.

 

[Ladyback1]

You don't understand why conscientious family judges tend to "avoid" awarding shared physical custody?

Perhaps you might ask a child psychologist.

And by the way, neither are the testicles "magical".

There is a difference between shared custody and shared physical custody.

I don't see where mom is asking for shared custody or shared physical custody...so none of us are sure what exactly she's wanting.

 

[jkleinsrc]

Hello everyone

I am asking for sole physical custody if that is possible.
I took care of child from his birth until the divorce was filed and now all of a sudden his dad tells he wants custody. I don't know if he is willing for shared custody, but what people tell me that if he wants custody and if he is willing to negotiate for 50-50 shared physical custody, court is very likely to award him that. Is that true..
Well he does know how to change diapers, feed him, change his clothes, bathe him everything and I am not breastfeeding anymore..
So he is saying I am also a capable parent and I am sure he will put up this argument.
I left the home because I did not feel safe to live under the same roof after receiving divorce notice.

My lawyer is confident that I did not abandon the child, I just left for above reasons and I asked for visitation rights right away after leaving the home, not that I waited for few weeks and than asked for visitation.

There is a difference between shared custody and shared physical custody.

I don't see where mom is asking for shared custody or shared physical custody...so none of us are sure what exactly she's wanting.

 

[Silverplum]

Hello everyone

I am asking for sole physical custody if that is possible.
I took care of child from his birth until the divorce was filed and now all of a sudden his dad tells he wants custody. I don't know if he is willing for shared custody, but what people tell me that if he wants custody and if he is willing to negotiate for 50-50 shared physical custody, court is very likely to award him that. Is that true..
Well he does know how to change diapers, feed him, change his clothes, bathe him everything and I am not breastfeeding anymore..
So he is saying I am also a capable parent and I am sure he will put up this argument.
I left the home because I did not feel safe to live under the same roof after receiving divorce notice.

My lawyer is confident that I did not abandon the child, I just left for above reasons and I asked for visitation rights right away after leaving the home, not that I waited for few weeks and than asked for visitation.

You have an attorney: what are you doing asking questions here?

 

[Ladyback1]

Hello everyone

I am asking for sole physical custody if that is possible.
I took care of child from his birth until the divorce was filed and now all of a sudden his dad tells he wants custody. I don't know if he is willing for shared custody, but what people tell me that if he wants custody and if he is willing to negotiate for 50-50 shared physical custody, court is very likely to award him that. Is that true..
Well he does know how to change diapers, feed him, change his clothes, bathe him everything and I am not breastfeeding anymore..
So he is saying I am also a capable parent and I am sure he will put up this argument.
I left the home because I did not feel safe to live under the same roof after receiving divorce notice.

My lawyer is confident that I did not abandon the child, I just left for above reasons and I asked for visitation rights right away after leaving the home, not that I waited for few weeks and than asked for visitation.

ya know....just because you cared for the child since birth does not mean Dad doesn't get to have a bond, attachment, to the child and could be just as good a parent as you. In fact, you obviously feel that he does ok as a parent since you were willing to leave child with Dad.

I am having a hard time reconciling what you said in your initial post:

There were no restraining orders, no incidents of domestic violence, no mental illness etc on both the sides

and this latest statement:

I left the home because I did not feel safe to live under the same roof after receiving divorce notice.

Could you please enlighten the board as to what rationale you have that Dad should NOT have full physical custody? What are your reasons?

If you had filed first, do you think Dad would have left the home? Or did you plan to file, have him served and be moved out (with the child) before Dad got home one day?

 

[jkleinsrc]

I was going to file. But was hoping situations would change. I made mistake. If I would have filed first, I would have filed for restraining order and stayed in the house. But since he filed first, my case of restraining order would have had no meaning.

I have attorney, but attorney is not my therapist and charges a whole lot of $$ for one small line of answer. I dont have that much money either. Hence I need to ask to experts and that's why I am posting here.

I have a job that lets me work remotely all the time and care for the child, whereas my husband has a job which requires him to go to work every single day. Is this a good argument in getting custody?

ya know....just because you cared for the child since birth does not mean Dad doesn't get to have a bond, attachment, to the child and could be just as good a parent as you. In fact, you obviously feel that he does ok as a parent since you were willing to leave child with Dad.

I am having a hard time reconciling what you said in your initial post:

and this latest statement:

Could you please enlighten the board as to what rationale you have that Dad should NOT have full physical custody? What are your reasons?

If you had filed first, do you think Dad would have left the home? Or did you plan to file, have him served and be moved out (with the child) before Dad got home one day?

 

[Ladyback1]

I was going to file. But was hoping situations would change. I made mistake. If I would have filed first, I would have filed for restraining order and stayed in the house. But since he filed first, my case of restraining order would have had no meaning.



I have a job that lets me work remotely all the time and care for the child, whereas my husband has a job which requires him to go to work every single day. Is this a good argument in getting custody?

Why were you going to file a restraining order??

And frankly? If you are truly working when you are working from home---you should have just about as much time to care for the child as Dad does. Working remotely may provide for more flexibility, but....in all honesty, your employer expects you to be working and not caring for a small child. (if the child were older, then this might be a bigger plus for you...)