My wife is seeking joint custody with right to determine
our 5 year old's residence and plans on moving out of
state. Says she will fight me in court and use not
splitting the 5 year old from 12 year old sibling (12 year
old by pre-marriage) as basis to have primary custody and
or right to set our 5 year old's residence. What course
of action would you recommend for me to eihter be primary
custodian or joint but done so in way that prevents
pending move-away of my child?
Thanks for writing.
I asked you for further information (not posted), and you provided the following additional facts:
- You agree that the siblings have a deep bond.
- The mother wants to move 500+ miles away for a career opportunity.
- The mother is deployed (military) for four months every 1.5 years. During this past year, you cared for your daughter while mother was deployed for four months.
- You occasionally go out of town for 1 to 2 weeks on business.
- Due to your own job (military), you can't change cities for a while.
- There is no other family local (and I'm going to assume there will be no family where mother is moving).
In your case, you have two parents who are probably equal in parenting ability. You have two parents who probably have a comparable bond with the child. There are no accusations of drugs, violence, alcohol, abuse, etc.
There are a few things left for a court to examine:
- Would either parent be more cooperative with the other? The answer seems like neither one of you intends to alienate the child from the other. So, that's a wash.
- Has one parent been the primary caretaker of the child historically, and particularly in the past year? Per what you describe to me, you have put in more parenting time than the mother. Both sides would probably agree that you alone raised this child for four months at a time. The mother was alone with the child for maybe 1 or 2 weeks on occasion, due to your travel. This is a strong argument for why you should be favored as a parent, if the court is being forced to choose a primary home due to a move-away.
- Who can best provide stability in the future? Financially, it sounds like you and the mother are comparable (i.e., if each of you can buy food, clothing, toys, medicine, shelter; that's all that matters). And again we look at the knowledge that the mother will be absent for 8 months just in the next 3 years (i.e., 4 months at a time). This is a parent who cannot provide stability. A single parent needs to be home to promise stability in raising a child. By comparison, your occasional 1 or 2 weeks of travel is slightly problematic, but not nearly as devastating for your position. Who's going to parent the child during those 8 months of mother's absence? You? That would hardly be acceptable, since it'd uproot daughter from her schooling for 4 months while the mother is deployed. I just don't see it.
- Does the child's bond to her half-sister outweigh the other issues described above? Sometimes, there's no best option as to a child's best interest. When parents divorce, it destroys the best option (i.e., an intact home), and a judge must sort the pieces and rearrange them as best she/he can. I don't think the sibling bond is a strong enough argument to compensate for the things going against the mother's home. You, of course, welcome the older sibling into your home and probably would hope your own bond with her can continue (and you would say this in your pleadings). It would be up to the MOTHER to help the two siblings remain bonded, as you probably can't get court orders for custodial time with your stepdaughter.
So, if the mother forces a move-away decision, I think you'd have a decent chance at convincing a court that the younger child should live mostly in your home.
That said... I think it's a tragedy that a person's service to this country could cost them custody of their children. It's part of the price of being active in the military.
If I were in your position, I wouldn't give away your hand (as I outlined above), but I would plead with the mother to not force the fight. My tone would be apologetic and sympathetic in my pleadings that the court is forced to make a decision about which home is better for the child, but I would assert my position strongly.
I'd suggest trying to get 50/50 so long as the mother doesn't move, and you taking over primary caretaking if the mother does move (i.e., offer a suggested "long distance" schedule in the event of the mother's move). It's probably in the court's discretion to order something like that.
Ideally, the mother will change her mind, and you two can have a 50/50 schedule and continue to share raising this child (and keeping her close to her sister).
Seek out a family law attorney who has at least 10 years experience in your county, who has experience with military families, and who has move-away experience. When interviewing attorneys, ask specifically on those issues... an attorney who has significant experience in those areas will be more familiar with how judges tend to swing.
In conclusion... neither one of you has a slam-dunk position, but I think yours is a bit stronger in getting majority custodial timeshare if/when the mother moves.