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Parents fighting over 9-month-old son in pre-divorce separation

Your Question:
Long story, short version:
I've been married 6 years. I told her over 6 months ago that I don't love her, wanted a divorce, and wanted custody of our son (now 9 months old).

She has finally agreed to divorce, but despite saying uncontested is the way to go, her stipulations are outrageous. She wants our son, the house (my pre-marital asset), spousal support, child support, and to finish college. Somehow she expects me to support myself on $-500 / month.

She has a track record of instability, criminal acts, DUI's, alcohol abuse and domestic violence (against me).

Currently she lives in my house with our son, claiming that she feels unsafe when I'm around. We both have retained counsel, but neither has filed.

I want temporary / permanent custody of our son, and want her out of my house. We live in Florida.

I had our son over the weekend after taking him from my house while she was showering. She wanted to file kidnapping charges, but I'm sure she was laughed at by the person on the phone upon hearing that there is no court orders in place. We both attempted to file restraining orders against each other only to have them turned down. In a moment of kindness I let her hold our son, only to have her run off with him from the courthouse.

So - should I have him with me somehow when papers are served to her? Should I have take him again when she goes to the bathroom? How can I legally get her out of my house? I want my son so bad, but selling my house will probably be the source of money so I can fight the apparently female biased "justice" system. What can I do?

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My Answer:

Man, what a mess you're in.

First, set the expectation with yourself that you may not have permanent orders on child custody for a year or more. You may be in court many times, if all that you outline is true.

Second, get some serious self-education on how to best position yourself. Writing for advice is great. Spending time on some child custody discussion boards is great.

Most helpful to you would probably be a book like "Win Your Child Custody War" by Hardwick. Neither of you have even filed yet, and it's already war! That book can help you save thousands in attorney fees by learning how to best utilize your attorney. It will also give you long-term strategies to best position yourself for what you think is best for your son. There's a convenient link to purchase it on Amazon on my Resources page.

Okay, now on to specifics.

The MOST IMPORTANT THING that you demonstrate from now on is acting in your child's best interest and with great sensitivity that a 9-month-old deserves. If you do anything that could be portrayed as against either of those, it could really come back to bite you horribly during child custody evaluation and court proceedings.

You're going to blow through a ton of money. You already know that. Don't worry so much about the financial matters of divorce. Those will all work themselves out over time, and there's not nearly as much strategy you can do to have an impact on the court with how the numbers work out. Ask your attorney about feasibility of securing the house.

Given that your actions have less impact on financial outcomes than they could on child custody outcome, that's why I emphasize to act both in short-term and long-term with your child's interest.

I agree that it's in your interest to have your son with you at the time of filing for divorce and for as much time before and after that. The court and custody evaluator may be interested in knowing who has been mostly taking care of your son in the prior many months before a decision is rendered.

BIG CONCERN I HAVE FOR YOU... It is probably going to be extremely alarming to a custody evaluator and the court that you two are playing a game of "steal the baby" from each other. This approach ain't going to fly very well, but I certainly understand your motivation.

So, here are some thoughts on what you can do ASAP and at little cost to you:

  • Buy that book I mentioned. You only need to read the first few chapters at this point, but the rest will be valuable later.
  • Get your wife's criminal records. If there's nothing violent within past ten years, and no felony within past five years, it's probably not relevant. It's relevant, however, if there is a long string of misdemeanors that suggest an immoral character who is a poor role model for a child.
  • Get your wife's DUI records. If there's only one DUI and it isn't within past five years, it's probably not relevant.
  • Get witnesses who can testify about your wife's instability with specific desciptions of incidents that are alarming. Have them write affadavits.
  • Get witnesses who can testify about your wife's alcohol addiction with specific descriptions of incidents that are alarming. Have them write affadavits.
  • Send your wife daily emails, asking to see your son. Keep your emails civil. If she responses with nastiness, and outright refusal, that's great for you. Don't engage her on any level except with civil words.
  • Record yourself leaving a daily message to your wife, asking to see your son (i.e., get a microphone attachment for your phone, or record yourself talking on a speakerphone, so that the recording will capture dial tone, numbers dialed, announcement message, and the message you leave including you stating date and time in your message)
  • If you talk to your ex on the phone, let her know that you're recording it. Ask her when she will provide you access to see your son. If she continues to talk, she's providing implied consent to be recorded. If she says something like, "You'll never see him again" or "You can only see him if you give me the house", that will be gold for you.
  • Never be alone with your ex again. It's too easy for a false DV accusation to arise.

The above may take you several days, if you really crank on it. Your focus on what to gather is not to prove she's a bad person. It's to prove that she poses a serious threat to your son. Frame your arguments around son's best interest. Also, continue to make the daily requests to see your son.

Think of what incentive you can offer your wife that could convince her to immediately give you majority timeshare (i.e., 60% or more) with your son. For example, if you offer to let her stay in the house, while you make payments, as a temporary condition until a different order made by the court. And say that the parenting arrangement is temporary, until further order of the court. This would probably be your LEAST COSTLY option to get majority timeshare with your son. Put pride aside and think strategy and cost analysis. A monthly mortgage payment is less for you than the many hours of attorney fees needed to try to achieve the same result.

If negotiation fails or is impossible, get all the above materials together, go in to your attorney, and file for divorce. If you can prove she's as bad as you say (per the evidence and affadavits above), your attorney may likewise go Ex Parte for immediate custody of your son, and you may get it... if how you portrayed your situation is true.

Above all... calm down and take a breath! You've got 17 more years to deal with custody issues, and you need to pace yourself and really think long-term strategies. Keeping your head will be your biggest asset.

Please write back when something happens in your situation, and we can talk about next steps.

Good luck, and always do good by your son.


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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