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Custodial father facing a custody challenge by mother; includes concerns over his recent D.U.I.

Your Question:
I have custody of my nearly 4 year old son, his monther lost custody of him in the temporary hearing for the divorce, because she had left the house and left me with the child to go live with her mother, she also had a job that required her to work 6 days a week and spend some overnights out of town.

I have raised the child now for nearly the last 3 years, in that time I have completed a nursing program and am currently working on additional schooling...I am an LPN working on my RN....1 year to go.

My ex is now fighting me for custody, her statement is because she signed over custody because of a job, and that part can be shown to be incorrect because my attorney has documentation that states that she quit that particular job for a regular 40 hour work week, 3 weeks before signing over custody and she states that since she is engaged and living with a man whom has 2 children he has custody of that she provides a better atmosphere for the child.

Here are the facts in a nutshell:
We are seeing the same judge that awarded me custody in the temporary hearing when my son was 10 months he is obviously progressive.

I have had him for 3 years, her having visitations that we agreed upon in the final hearing, that gave her about the every other weekend parenting role..and the mid week visit.

It was stated in our decree that she could have a summmer vacation agreeable by both parties and that if it extended over 7 days she would give me her visitation provided she didnt go out of town, She never exercised any extra time with the regards to vacations for the last two summers, third is coming up

She has never spent more than 32 hours in a row with the exception of Mothers day where she got 48...

She is currently $1800 behind in support

I have given over 100 extra overnights to her realizing my sons need for his mother..

She has a job that required her to work Saturdays till 1pm when her visitation started at 9am, and on more than 40 occasions in the last 2 years I have made arrangements to be the one to maintain him till she was available, I think this and the extra overnight indicate that I am flexible and that I truely have my childs best interests at mind...

I am a stay at home father that has savings to pay my expenses at this point until I can finish school and my son starts preschool in the Fall..

Here is the one thing I have going against me.. a year and a half ago, I was pulled over for DUI...I have not gone to court at this point because the attorney, (different from my Divorce attorney) is very busy and has filed continuances....

I do have 2 other convictions for drinking and driving from over 10 years ago when I was in my early 20's, but those were there BEFORE I was a parent, I know that they may try to show a pattern and show me unfit or at least attemtp to use that...there has never been any physical harm to my child, whether from me or other or his mom, he has a wonderful home, and wants for nothing in regards to his day to day needs, we have a great bond and I am very active in his development with a YMCA membership for the two of us, he attends a creative mess work shop, a lap sit reading program weekly, a gymnastics class for physical and mental development and to follow direction, I have all these activities documented from long before being served on this particular custody fight,

I talked to my attorney regarding the DUI and she stated that the son was not left to go drinking, but rather it was bowling night, he was in the care of my parents who have always watched him, he was not in the car so he was not put at risk, or endangered in any way...I was and am a great father even with the past convictions that took place long before me even being married...this was also known to my wife that I had this offenses when she signed him over to me....

I think that I have done what the courts realize in taking my sons interests as being paramount, but just wonder what you suggest or think...I am in Indiana....if that helps..

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My Answer:

I think you have most things going for you here, but that recent DUI can be a wildcard depending upon the judge's attitude about drinking and driving (more on this coming in my answer).

First, let's look at the good for your position:

  • You can get affadavits from the directors/coordinators of all those activities you mentioned. They can be short and sweet-- how long you've been involved, and how comfortable your son appears with you
  • Hopefully, you had some exchange of correspondence with the mother about your willingness to let her have extra time with the kid. It's very good to show that you haven't been an ogre about adhering strictly to the ordered timeshare schedule. That's more rare than common in family court. Without any correspondence or decent documentation, it may become he-said-she-said.
  • If the mom hasn't ever spent more than 32 hours with son, I can't imagine she's going to get very far at all with demanding a custody change.
  • It's largely irrelevant that she may be more available in her home. This may be applicable to petitioning the court for more time with son, but it has no bearing on actually changing custody.
  • She is behind in child support.

To change custody, she is going to have to show why the current arrangement is detrimental for your son.

To that end, this is where your recent DUI can be damaging. I understand your argument that she agreed to you having custody despite knowing about your past DUI charges, but she would simply counter with, "Well, I thought that was behind him. Obviously not."

I also understand your argument that your son wasn't with you when you got your DUI. Her attorney would simply counter with, "That's great, your Honor, but this father can't be a good parent if he's sitting in jail or dead. This is his third DUI, and he's showing tremendous irresponsibility as the custodial parent."

If your ex finds out about the DUI, do you think she's not going to exploit it in every manner she can conceive? If I were in your shoes, I wouldn't gamble that the judge would be just as easy on you as your attorney.

According to a recent report from a child custody researcher, alcohol problems are the #1 criterion that have an impact on a judge's custody decision. I think you're facing a big wildcard element here, if your ex discovers the DUI.

So, if I were in your position, I'd immediately start attending AA on a weekly basis. I'd take a defensive driving course. I'd do everything I could to plea down the DUI to something else (e.g., reckless driving). And, I'd start drinking non-alcoholic brew on bowling night. You want to be able to show the court, if the DUI becomes an issue at all, that you've already taken responsibility for your mistake. If the DUI doesn't come up, then nobody besides your attorney ever needs to know that you went to AA and took the defensive driving course.

My "bigger picture" warning is-- you're unlucky when it comes to drinking and driving. You may not have hurt anyone, but cops seem to find you. So, knock it off altogether. If you get away with this one not having much of an impact, fate gave you a freebie. I can't imagine you'd be able to argue away TWO of them as a custodial parent if you get nailed again in coming years.

That's that. Now, one more strategic point to discuss with your attorney. $1800 in back support doesn't say how much time that covers. If it's only one month, that may not be a big deal. If it's several months, you may want to consult with your attorney about filing contempt against the mother for failing to pay child support. This would present the mother in a bad light with the court, and it would be proactive ammo for you to use in opposition to her attempt to change custody (i.e., "She purports to want his best interest, but she already has shown disinterest in his welfare by refusing to support him as this court ordered?!").

So... if I were in your shoes, I'd probably file that contempt the same day I got served with her petition to change custody. It would be her choice to turn this ugly. If she doesn't file her petition, I'd just give gentle reminders to her every now and then to please keep current on support for your son.

As it sounds like you've been doing, just continue to keep your son's best interest in mind. If it means letting mom have extra time (even after she offends you with wanting to change custody), then keep doing that. It does sound like you've been a very devoted, involved father. If what you outline is true, then I think that pesky DUI is your only wildcard here.

Good luck, and please let me know how it turns out.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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