Sole Custody Issues

It's tempting to request sole custody rights, especially if there are extreme bitter feelings towards your ex. But before you head off for a long and unpleasant custody battle, you need to understand how and why such a custody arrangement is reached.

By WomansDivorce.com | Answers by Brette Sember, J.D.

To start off, you first need to realize that there are two different types of sole custody.

Sole Legal Custody: One parent has the right and responsibility to make major decisions regarding the child’s welfare, including matters of education, medical care and emotional, moral and religious development.

Sole Physical Custody: The child resides with and under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

Given these two variables, custody can be arranged in a number of ways. One parent may be awarded full legal and physical sole custody rights. One parent may have legal sole custody rights, but share physical custody through a visitation agreement. One parent may have sole physical custody, but the other parent may share in decisions about the child.

It is rare for the courts to award sole physical and legal custody to a parent, unless the court deems that one parent is unfit. Examples of what might make a parent unfit include: a history of violence, mental instability, drug or alcohol abuse, or neglect of the child. Even then, visitation rights might be granted under a supervised visitation agreement.

To help you further understand some of the issues which come up with such an arrangement, you can read over the following commonly asked questions answered by the legal expert.

Sole Custody FAQs

Understanding Sole Custody

How Sole Custody is Determined:

Factors Affecting Custody:

Abusive Situations and Sole Custody:

Parental Rights and Sole Custody:

Changing Custody:

Understanding Sole Custody

Does sole custody mean both physical and legal?

Elizabeth's Question: The court document says that I have sole custody. It does not say sole physical or sole legal. Does this mean that I have both?

Brette's Answer: It means both.

What are the advantages of sole legal custody?

Kathy's Question: Could you lay out the benefits of having sole custody? I am currently going through a divorce and I am concerned about my husband's parenting abilities. He has an addiction to prescription drugs as well as some pain killers. I have pictures of text messages that he has sent, as well as two overlapping prescriptions for different sleeping pills. I also have pictures of the hole in the wall he punched and the pictures he ripped up when he got angry. How does my case sound and is my evidence admissible to prove drug dependency?

Brette's Answer: The benefits of sole custody are that you do not need to consult with the other parent to make important decisions about the child's life, such as education, medical, religious, etc. It does not impact the other parent's right to visitation. An attorney can tell you what is admissible in your jurisdiction.

What are my chances of getting sole legal custody?

Heather: I want sole legal custody so that I know she's in my care at all times and that I can make the important decisions that are best for her.

Brette's Answer: Honestly it depends on what the precedent in your state is and what kind of judge you get. If there is a strong preference for joint legal custody and there is nothing to show he is a bad parent or you can't work together, then the court will order that.

What is the difference between sole custody and the termination of parental rights?

Cat's Question: My son is now 3 years old and his biological father has just now decided he wants to start visitation with him. He has not participated in my son's life or ever paid a dime of child support. What steps would I need to take to get sole legal custody of my child? Would my boyfriend have any rights in the say so of raising my son if he is identified by my son as daddy? Also, what is the difference between termination of parental rights and sole custody physical and legal?

Brette's Answer: Most likely he will be entitled to some visitation since they have a right to know each other. It is usually in the child's best interest to know his father. Your son can continue to have a loving relationship with your boyfriend; however he deserves the opportunity to know the man who helped create him.

You can ask for and will probably get sole legal custody- all decision making power will be yours. However, visitation is something you need to prepare yourself for. It should start very gradually because they need time to build a relationship with each other.

Termination of parental rights is only warranted when there has been a situation such as abuse. It doesn't sound as if that is the case here. There is no reason to terminate his rights. I understand you are probably angry with him for not being involved for so many years and not taking responsibility. That's your issue though and you've got to separate it out from what is right for your son.

How Sole Custody is Determined

What are the chances that I will get sole custody?

Darlene's Question: My husband and I have split up and I want sole custody of our daughter. He is in the military, and has only seen her four times since she was born. I want him to see his daughter, but he doesn't have a lot of experience at being a parent. Will the courts rule in my favor?

Brette's Answer: Custody is decided based on the best interests of the child. If you're arguing that you should get custody, then you need to argue that is what is best for the child and show examples of what your ex has been doing that makes him not suitable to have custody. Keep a calendar that documents all visits so you have proof of the schedule. Note any problems you have with his care of her. Make a list of all the things you do for your child. Line up people to testify about what a great mom you are.

The thing to remember is that the court wants your child to have two parents, so it is likely the court will create a plan that allows him access. If you are able to, it might make sense to try to work this out on your own without having the court intervene.

What kind of proof do I need to get sole physical custody?

Jessica's Question: What kind of proof do I need to gain sole physical custody of my son?

Brette Answers: Custody is determined based on what is in the best interest of the child. The court will look at who has been the primary caretaker. You need to prove that it is best for your child to be in your custody. That means showing you provide a better environment and better parenting. It also means showing that time with the other parent would be detrimental to the child. If you're hoping for there to be no visitation at all, you need to prove the other parent is not fit at all.

How can I prove that sole custody is in the best interest of my child?

Lori's Question: How do I go about proving to the court that sole custody is in the best interest of my 16 year old son without the court thinking I am being a spiteful ex? His father has never been involved in his life and is addicted to alcohol and drugs. He takes no part in our son's education, sports, etc. He has 5 DUI's (felony) and never sought the court-ordered help he needed. I have caught him with drugs around our son. I feel my son is at a very crucial age and he may influence him negatively. Is this info enough to obtain sole custody? If so, how do I approach this sensitive issue in the petition (and do I give details)?

Brette's Answer: In the petition you would simply give an overview of what your reasons are. If it goes to trial, you would need to prove your case there. Since your son is so old, his opinion will matter to the court. You need to be prepared to find witnesses that will uphold your perspective. I think it's good that you are sensitive to not appearing like a vindictive person, but you are doing the right thing by standing up for what is best for your son. It sounds like you have persuasive evidence - you just need to be sure you are able to communicate it all to the court.

What do I need to put in the petition for sole custody?

Tammy's Question: My ex is seeking sole legal and physical custody of our 2 minor children. I'm trying to file a counter petition for sole custody due to injuries my minor children have sustained while visiting their father. There was not adequate supervision with 2 of the incidences and the 3rd he was directly responsible for the injury to my youngest daughter. How do I go about putting this information into a petition and what would my chances of getting sole custody be considering the injuries and other things I have proof of on him.

Brette's Answer: The question is not how you put it in a petition; it is how you present it at trial. You need witnesses. Photos of the injury or medical reports are also important. In the petition you simply describe your concerns. At trial, you have to show admissible evidence of what happened. That means witnesses must have direct knowledge of what happened. You can testify about what you've seen or experienced. You can question him. You really need to try to find someone else who has direct knowledge. Good luck.

Can I get sole legal custody if I already have physical custody?

Carolyn's Question: Currently I have sole physical custody of my son and have joint legal custody with my ex. As part of the joint legal custody agreement, I am told that I have to contact him for certain things. However, he has changed his number so that I cannot call him. He has only seen my son twice since court even though he has visitation rights for three times a week. He wants nothing to do with his son. Can I get sole custody based on these facts?

Brette's Answer: If you have no way of contacting him, then you are not required to get his permission to make certain decisions. You could request sole legal custody and likely get it if he has no interest. If you choose to do this, there are methods for serving people you cannot locate.

Can I get sole custody if he's not on the birth certificate?

Cherie's Question: I had a baby with my boyfriend, but he is not on the birth certificate. He has only seen her 4 times and has never paid any child support. What are my chances of getting sole custody? He has admitted in text messages that the baby is his. Is this enough to establish paternity?

Brette's Answer: To determine legal paternity he must either admit in court to being the father or a DNA test will prove it, in conjunction with some information about your cycle and his access to you. Since he has had little contact with your child, it is likely you would have legal custody, however visitation is likely.

Can I get sole custody if we were never married and he rarely visits?

Question: I had a child 10 years ago and never married her father and we never lived together. He visits once a month for a few hours, is uninvolved with school and medical decisions. We have a verbal agreement of $300 for child support which he misses often. I am contemplating filing for sole custody with visitation to stay as is since he shows little interest in spending more time. How likely is it that I would be granted this and will a judge see though his antics if he contests and asks for more visits?

Brette's Answer: Keep a calendar or journal recording all of his visits to date. Courts tend to keep the status quo if it has been working. He could be granted more regular visitation if he asks for it. You are also entitled to file for child support so that missed payments are enforceable. Talk with an attorney in your area for details. 

Can I get sole custody if he doesn't meet the court requirements?

Micelle's Question: The court suspended my husband's rights until he completes reunification counseling with the children, which he has not done. He also refused to do to the court appointed counselor. He refused his Christmas visit and has no contact with the children. Can I file for sole legal primary custody? And will he have to keep paying support?

Brette's Answer: If he doesn't comply with what the court required of him, then you will likely get sole custody if you ask for it. Child support would continue if there is an order in place.

How do I contest custody if it was determined by a default divorce?

Leslie's Question: My husband was abusive and forced me to leave my children, so I now live in another state. He filed for divorce and custody was awarded by default because he claimed that he didn't know where I was. I have been talking to my kids every day and he even has my phone number. Now he is trying to get full custody of our children. How can I fight his lies? He's telling the courts that I am an unfit parent. Please tell me how I can fight back.

Brette's Answer: You need to hire an attorney in the state your children live in and contest the custody case. The attorney will also be able to tell you if the divorce can be challenged. If you don't how to find an attorney, call the state bar association and ask for a referral for a family and matrimonial attorney.

Can we avoid going to court if he agrees to give me full custody?

Yuly's Question: My ex has decided to leave the country and he has agreed to sign an agreement where he gives me SOLE LEGAL AND PHYSICAL CUSTODY of our 2 year old daughter. Do we need to go to court for this or can I just contact a lawyer and have the agreement prepared?

Brette Answers: You will need to at the very least get the agreement submitted to the court so it can be turned into a court order. It is not enforceable until it is a court order.

Factors in Determining Sole Custody

Can I get full custody if I will be breastfeeding my baby?

Adriana's Question: Is there any way for me to have full custody of my son if I'm breastfeeding? The father keeps telling me that he has the same rights as I do, and will have the baby half of time no matter what. How can I get full custody of my baby?

Brette's Answer: The first thing is to calm down. Courts support breastfeeding, so I don't think you need to worry about shared custody right now. No one is going to take a newborn away from the mother without a very good reason.

He does have rights as a parent, and it is true that mothers and fathers have the same rights; however you have to understand that there aren't many judges who are going to order a newborn to split his time half and half.

This sounds like a situation where he would be given visitation. If you can't agree on a visitation plan, one will be set up for you. Breastfeeding makes it less likely that he will have a lot of time in the beginning.

I know it seems like you're going to be breastfeeding forever, but gradually your baby will get older and be able to spend more time away from you. Visitation should adjust as your baby grows.

You do need to accept the idea that he and your child deserve to have a relationship and you need to get to a point where you're willing to allow that to happen. This man was good enough to make a baby with, so he most likely is good enough to spend time with the baby.

Will I get sole custody if he's never seen our child?

Leslie's Question: What are good reasons that a judge will grant sole custody? The father of my child has never seen her and expresses no interest in her.

Brette's Answer: The facts that the father has never seen nor expressed an interest in the child are good reasons. Is he contesting your request though? That alone is a problem. If he is contesting it, it shows he is at least now trying to show an interest. There are a lot of reasons a parent might be ordered sole custody with no visitation to the other parent - a history of drug/alcohol abuse, child abuse, a pattern of very poor parenting, dangerous lifestyle and so on. The age of your child is going to be important. If she is a baby, there is still a lot of time in which he can build a relationship. However if she is older and has never met him, he has less of an excuse.

Can I get sole custody if he's mentally ill?

Lori's Question: I currently have joint custody of my two young children. Since the divorce my ex-husband had a breakdown. He has been admitted to a halfway house for the mentally ill. It has been three years and no signs of him getting better and he now has a guardian for his affairs. He has seen them once after two years. He is barely able to speak and cannot take care of himself. Can I file a post decree petition for sole custody?

Brette's Answer: Definitely. Yours is a textbook case. You shouldn't have any problems.

Can he get full custody if his parents watch the kids while we work?

Melissa's Question: I work full time and so does my husband. His mother and father are the kid's caretakers while we work, and my husband always says that he would prove that he and his parents are the sole providers. Can he really get full custody just because his parents watch them during the day and see my kids more than I do?

Brette: Custody decisions are based on what is in the best interests of the children. The child care situation is a factor, but he will certainly not get custody simply because his parents provide child care. You need to make plans for how you would obtain child care if you had custody.

Can I get sole custody if my ex is unemployed and moving?

Cindy's Question: I'm divorcing my husband due to physical and mental abuse. We both filed for primary custody, and there was a social study done in which I received primary custody. He recently lost his job and plans to move to a town almost 50 miles away. He has also sold property, which our divorce papers prohibited. He gets visitation four days a week, three times a month. What are my chances of getting sole custody?

Brette's Answer: Not having a job has no impact on custody and visitation. Since you already had a study done, I don't think you have any grounds for a change. Moving isn't a reason for a change either, especially since you can continue with the schedule as is. Whether he sells marital property is also not a factor in custody. Custody is about the best interests of the children, period.

Can I get full custody if I suspect that he's doing drugs?

Shannon's Question: What would be my chances of getting full custody of our daughter if I had suspicion that her father was using marijuana, even at times when he has her at his house?

Brette's Answer: A suspicion isn't very helpful. You would need to request drug testing.

Abusive Situations and Custody

Can I get sole custody if he's physically abusive to the kids?

Lisa's Question: What are my chances of getting sole custody of my children if my ex has been mentally and physically abusive to them? Child services are involved, and my children have expressed not wanting to see their father to their therapist (and have not done so in 6 months).

Brette's Answer: Your chances are very good. However, it may be healthy for your children to slowly build a relationship with their father under the care of a therapist. Your goal should be to protect them, but also to do what is right for them.

Can I get sole custody if he's verbally abusive to me?

Yvette's Question: My husband verbally abuses me, did not support me emotionally through my pregnancy, and does not help me with the baby. Do you think I can get sole custody?

Brette's Answer: The emotional abuse is a concern and if you are ever in physical danger you need to call the police or go to your local domestic violence shelter. However, his relationship with you really does not determine whether he should have contact with his child. A decision about custody will be made based on what's in the best interest of your child, and in most cases, it is best if the child has two parents.

Can I get full custody if my ex's wife abuses our son?

Robin's Question: My ex and I currently have joint custody. Can I get full custody if my ex's wife abuses our 7 year old boy?

Brette's Answer: If the children are being abused in the environment, you can seek full custody, however, since it is the wife, not the father, it is more likely the court would create a situation in which he would be ordered to have visitation when she is not around - unless he is aware of abuse and has done nothing to stop it. If your children are being abused, you should file a report with child protective services.

Can I get sole custody if he's emotionally abusive to our son?

Vanessa's Question: My 6 year old son claims his father is being emotionally abusive towards him. What are the chances I will get sole custody if I file for it?

Brette's Answer: First of all, a 6 year old does not know what emotional abuse is, so I assume those are words you are using, and that term can mean a lot of things. I suggest you talk with an attorney to determine what kind of case you have and whether it meets your state's standards.

Can he get sole custody if he's physically and verbally abusive?

Melissa's Question: What are the chances that a father will be granted sole custody in the event of a divorce if he is abusive, not only physically, but also emotionally, and mentally?

Brette's Answer: Courts rely on proof. The question is how much you can prove and what kind of impact you can prove it has on the children.

Should I try for sole custody if I'm afraid of him?

Jennifer's Question: I have a 5 year old with a man who hasn't seen my daughter for over 2 years. We don't have any kind of court order for custody or visitation and I don't even know where he lives. I am now married and have a family and my daughter is happy and stable. We live in a very small town and I fear that one day I am going to see him and I do not know what he is capable of. He once told me that he was not mentally stable and did not trust himself with her. Should I try to get sole custody of her?

Brette's Answer: I think you should meet with an attorney and discuss your options. It sounds to me as though you might want your husband to adopt her. That would be the best way to protect her. To do that, her biological father has to give up his rights. You would need to find him and get him to agree. The same is true for custody - you have to notify him (unless you truly cannot find him, then either case would proceed without him - in a small town though I think that is unlikely). The problem is beginning a case could always reopen this issue for him and make him push for visitation. I want you to meet with an attorney who can go over all the options and possibilities with you and help you consider how best to handle this.

What can I do if there's a family history of physical and sexual abuse?

Kristie's Question: My ex abused me and our son (who is now five years old). I have had protection orders against him in the past. Recently he threatened our life and took our son, saying "no one would ever see him again". I got an emergency protection order and we went to court. During the process, I found out that my ex's father had sexually abused my ex and spent time in jail for it. The judge ordered that my son have NO Contact with his biological grandfather. My ex still LIVES WITH THIS MAN. Recently my son has started peeing himself and vomiting (not his usual self) when it is time for his father to come pick him up and after he returns home. He claims he still sees his biological grandfather, and even spends time alone with him during shopping trips or when my ex has to go out of town. I would like to go for full custody (physical and legal) but I'm not sure how the judge will take it. The judge said in our last visit that she was concerned about it, and it could possibly be a link to sexual abuse. What do you think?

Brette's Answer: Get your son to a therapist ASAP. Get an attorney. Child protective services should be involved as well, but talk to your attorney first. Good luck.

Parental Rights and Sole Custody

Can I get sole custody so I can control the visitation schedule?

Question: I live in a state that generally pushes for joint custody. I want sole custody so I can dictate when and where and for how long my ex sees our daughter. He is a diagnosed sex addict and I am worried about what she will be exposed to with him. Will this possibly be seen as a good enough reason for me to have complete custody over her?

Brette's Answer: You're misunderstanding what joint and sole custody mean. Legal custody has to do with decision making in terms of medical or educational. Residential custody has to do with living arrangements, but the wording means very little in most states for this. The kids usually live primarily with one parent and the other parent has a set visitation schedule. In no situation would you be able to dictate when and how he sees the kids; this is determined by the court. If you have reservations, you need to communicate them to the court.

Can he take my daughter to live with him if I have sole physical custody?

Tammy's Question: I share joint legal custody of my 17 year old daughter, but I have sole physical custody. Can her father take her from my home to live with him without petitioning the court? He is threatening to do so.

Brette's Answer: No he can't. If he does, you can file a petition for a violation of the order against him.

Could I lose sole custody if he takes care of her after my surgery?

Anna's Question: If I have so custody of my child, do I lose my rights if I have a written agreement with father to take care of her while I heal after spine surgery?

Brette's Answer: The only way your rights can be changed is if the court modifies the order. If the other parent has the child for an extended period of time this could be a change in circumstances that could be the basis for a change in custody. You should talk to an attorney who can look at your order and help you plan what might be best. 

Do I have to send him updates if I have sole legal custody?

Angela's Question: I have sole legal custody of my two sons, ages 2 and 4 and their father has supervised visitation. He will not leave me alone! If I don't respond to his emails, he becomes angry and starts harassing me about his "rights" as their father. He demands "updates" on the children in an attempt to pull me into a conversation.

Brette's Answer: You aren't obligated to tell him anything. He has a right to his visitation time and nothing else since you have sole legal custody. You don't have to engage with him.

Will I need his permission to move if I get sole custody?

Charlotte's Question: I have a 16 month daughter and I want a divorce, but am having trouble setting up a plan with the father. I want full custody because I heard I would not need his permission to move with my daughter after the divorce. Also, who gets custody while the divorce is going on?

Brette's Answer: Having sole legal custody does not mean you do not need permission to relocate. If your ex has any visitation at all, relocation jeopardizes his rights and therefore relocation is an issue that has to be addressed by the court.

Usually the court will issue a temporary order that maintains the status quo during the case. The child usually remains in place, but temporary visitation is set up while the case is ongoing.

Your child needs to have both parents in his or her life. If you and your ex can find a way to work together it really will be best for everyone, particularly your child.

Can I make health decisions if I have sole custody?

Megan's Question: I have sole custody of the kids, but every time I make a doctor's appointment that he doesn't like he fights me on it. Can he stop me from making health decisions for my son?

Brette Answers: If you have sole legal custody, then you have decision making authority for all medical and mental health issues.

Can I get sole custody if my ex is interfering with treatments?

Ann's Question: We currently have joint custody. Their father lives in another state and has very little involvement in their education or anything else. Now that one of the children has been diagnosed with a significant learning disability, he is trying to use joint custody to bar me from getting treatment (he thinks it's too expensive). Since he barely sees the children and really does not have a significant relationship with them, do I have grounds for sole custody?

Brette's Answer: Yes, I think that is definitely worth pursuing. You can seek sole legal custody, but visitation is still going to be continued most likely.

Does he have a right to access medical records if I have sole custody?

Alicia's Question: I have 100% sole legal and physical custody along with a DVRO that protects both me and my minor child from my ex. Does a restricted father have the right to access medical documents/history of minor child's medical provider? Code 3025 states noncustodial shall, but the verbiage is loosely constructed.

Brette's Answer: You should check with your attorney to understand what your state laws are. 

Can his new wife access my kids records if I have sole custody?

Tammy: I have sole custody (both physical and legal) of my 2 children. Can my ex-husband's new wife gain access to educational, or health records regarding the children? Does he have the right to give consent for the new wife to call my children's school and try to get information regarding counseling?

Brette's Answer: If you have sole legal custody, you are the only one authorized to access your children's records. You can give permission to your ex, but that doesn't give him the right to then authorize his new wife. You need to make it very clear to the school and health care providers that you are the only one with legal rights to these records and that they absolutely cannot share it with anyone else without your direct permission. [Update: Some states, such as Arizona, Indiana, and Illinois, allow both parents equal access to school records. You should check with the laws of your individual state to verify parental rights to access school records]

Is he obligated to pay child support if I get sole custody?

Ashley's Question: The father of my baby has no problem giving me full custody because he knows I will still let him be involved in the child's life. Is he still obligated to pay child support if I have sole custody?

Brette's Answer: He isn't required to pay child support unless you request it. If you are receiving public assistance however, the state can require you to request it.

What is he required to pay for if I have sole custody?

Erin's Question:  What is the father supposed to provide if I have sole custody? He gets visitations and pays child support.

Brette's Answer: The other parent is only financially responsible for what is specified in your child support order. Some child support orders require the parent to pay for a portion of health insurance, medical costs, school costs, sports costs, etc. If yours does not, you could always ask to have it modified if you feel there should be more contributions.

Can I make sure he never gets custody, even if I die?

Amy's Question: My ex has never paid child support in the 5 years we've been divorced and he has rarely seen his child since our split. Approximately 2 years ago, he up and moved to Arizona and we haven't seen him since then. I want to make sure he never gets custody of my son even if I die. What are my options?

Brette Answers: First of all, you have to realize that your child has a father and you can never change who it is. Your child has a right to know who his father is and to develop a relationship with him. If he has moved away and lost contact it's very unlikely he would ever ask for custody, or if he did, that a court would give it to him. If you have sole custody now, there is nothing else you need to do. If you are concerned about what might occur should something happen to you, you should have a will drawn up naming a guardian for your child. You should specify why his father is not an adequate guardian. Be aware that your choice in the will is not binding on the court; it is merely a factor that is considered by the court in making such an important decision.

Changing Custody

Can sole custody be reversed?

Brette's Answer: Any custody arrangement can be changed, however you generally need to show a change of circumstances - a reason why it has to be changed, unless you appeal it and the higher court reverses the order.

The judge ordered a hearing. Could he really get custody changed?

Natalie's Question: My husband and I divorced about 8 months ago due to mental abuse from him and physical abuse on a few occasions. I planned on moving to be with my family and followed all the guidelines and sent him his certified letter. He filed a motion to stop the move and get temporary sole custody of the children saying I was homeless (which is a complete lie). The judge granted him the temporary order, and we go to court in less than a week. Could he really get sole custody of my children? I have a long list of teachers, principals, and other friends who are ready and willing to stand up in court and testify as to the kind of mother I am. I was a stay at home mom for 10 years with these girls so that I could always be at every function with them. He has also said that he would give the girls back to me if I dropped child support.

Brette's Answer: This sounds like a difficult situation for you. You've asked my opinion. My opinion is that you need to stop letting this man run your life for you. Stand up to him and do not allow him to intimidate you. It sounds like you have a lot of witnesses ready to testify on your behalf and that is wonderful. However, do you have an attorney? I would recommend it.

You asked if he could really get custody of your children. Either parent can be given custody, however, the judge will decide based on what is best for the children. Your job is to present yourself as the parent best able to care for them. Present the court with facts about where you live, how you support yourself, and have all of your witnesses testify. Is there a Law Guardian or Guardian ad litem in your case? Talk to him or her and welcome him or her into your home. This person is your best friend in the court room.

As for your ex's offer to "let" you have custody if you drop child support - it frankly disgusts me. Children are not bargaining tools and should not be used as a way to reduce financial obligations. Even if you agreed to his ridiculous offer, there would be nothing to stop him from taking you to court again later and saying you are not suited to care for the children and that he should get custody.

Can I get full custody if the kids are miserable around their dad?

Chelsey's Question: In our divorce, they awarded us joint custody with me having physical custody of the kids. My kids prefer to be with me. When they visit their father, my 2 1/2 year old always asks to go back to mommy's house. And my 1 year old cries a lot because he is used to me. Will that affect my case at all if I try to get full custody?

Brette's Answer: Your kids' reactions are pretty normal and not out of the ordinary. You have to remember that you don't see what they are like when you are not there. Odds are, they settle down when you are not there. It's very important that they have a relationship with their father. You didn't mention what the parenting schedule is like, so I can't comment on that. It doesn't sound like you have any evidence of mistreatment or anything that would prevent visitation. This is something you all have to learn to adjust to.

Can I get sole custody if we share custody now?

Kim's Question: When we separated, I agreed to co-domiciliary custody of our 5 month old daughter. Initially, she was with me full-time because I was breast-feeding. When she turned a year old, we increased his visitation to every other weekend, along with the few hours during the week. Shortly after that, he started keeping her at night due to my work schedule. As of right now, our time with her is split 50/50. He has very different routines for her than I do (he lets her nap at whatever time she wants to ... or not at all, doesn't rock her to bed and puts her to sleep with no nightlight). I try to maintain a schedule as much as possible, and have a difficult time getting her to adjust back into my routine when she returns home. I feel like this instability is unhealthy for her.

Am I able to get sole legal custody of her based on the verbal abuse I've been getting from my ex, his instability (has never held steady jobs), and the differences in our parenting styles & routines?

Brette's Answer: I would suggest you talk to an attorney who can go over the details of your situation. One of the problems is you let him have her for all nights, which meant he was the one who got to set the nighttime routine. If that was the routine he set up, the court could look at this as you being the one who is disrupting the routine that has already been set. His verbal abuse towards you does not automatically mean he is an unfit parent, although it can affect the child and you would need to show that it has. It sounds as if all of you are going through a period of change and so it is a good time to do some restructuring of your agreement and schedule. I think it is unlikely you will be able to get sole legal custody based simply on what you've laid out here, but you should discuss it with your attorney. Instead, I think what you need is a modification of your agreement so that everyone can kind of have a "reset" and start over with clear rules and a clear schedule.

Can I lose custody because I'm on welfare?

Tamara's Question: 3 years ago my ex and I agreed to joint custody. Now our son has chosen to stay with me after he turns 18. My 16 year old daughter has requested to live with me also. I emailed my ex stating that she wants to live with me and visit him (she doesn't want to go at all but I asked her to at least agree to every other weekend). Her father then served me with papers for full custody. At that time my daughter refused to go with him for her visit, the sheriff was called, and she refused to go even with the sheriff here. Can I lose custody because our daughter refused to go with her father?

I am living with a friend who lost custody of their children (for allegations of neglect and abuse by the mother). Even though my ex knows that the allegations are not true, he cited this as a reason to give him custody. I also receive welfare because I can't work and am trying to continue my college education. My ex's complaints were that my living arrangement are dangerous to my daughter, that I am living off my roommate, and have no income, and that our daughter must endure a one hour ride to school. Can I lose custody based on the fact that I am on welfare? What can I do to help my case in custody?

Brette's Answer: The facts in your case are detailed and complicated and I couldn't hope to understand them all from an email. What you should understand is that the court will be very interested in your daughter's point of view and will likely want to talk with her alone. Her wishes are very important. The fact that you have tried to get her to visit her father is a good thing. Your older son can testify since he is an adult. Being on welfare does not mean you are not a good parent, but the court will look at all of the circumstances and facts in your case. I think you should be optimistic. You are trying to encourage visitation, your daughter wants to live with you, and your older son also lives with you. Good luck.

Can he get joint custody after I've had sole custody for 10 years?

Corrinne's Question: I was awarded sole custody 10 years ago. Now 3 months after I got my child support raised for the first time he wants things changed to joint custody. Does he stand a chance?

Brette's Answer: It depends on what his reasons are. If there has been a change in circumstances, he has a chance. However, it's true that judges are mostly likely to preserve the status quo.

Can I seek full custody if he stops seeing the kids?

Question: I had to file a restraining order against the malicious behavior of my ex-husband's girlfriend. All 3 of our children live with me. He hasn't seen our 15 year old daughter in over 2 years, and he was only picking up our 8 year old son every now and then. Since I filed the restraining order, he said he's no longer going to pick up our son. Can I seek full custody because it is detrimental to these children's welfare?

Brette's Answer: Why do you want to seek full custody? Right now there is no visitation happening. I don't think it is detrimental to children to have visitation on the books. In fact, I think it is detrimental to children to NOT see their father. I understand there are some issues in your family, but really the best thing for children is to be able to develop a healthy relationship with their father.

Can I get sole custody if my ex has had no contact for years?

Jennifer's Question: My daughter is 8 years old and doesn't know who her biological father is. She has always known my current husband as dad since she was 2 years old. Now she is going to have to have surgery and I am told that I have to have my ex's permission or Sole Legal Custody of my daughter. Her biological father now wants visitation and she doesn't even know him. I told him that he needs to give me time to be able to explain things to her without totally tearing her apart cause it would be very hard for her to understand. She is a very delicate child and this would crush her world to tell her that her "daddy" isn't actually her dad. Do you think a judge would award me sole custody?

Brette's Answer: You have a very good case for sole legal custody, but if he wants visitation it's likely he's going to get it. You're right though - it has to happen gradually and in a way that will help her cope with it. Since you have not told her about her bio dad, it might be a good idea for you to consult with a counselor or therapist who can help you decide the best way to explain it and who can offer services to her if she needs some support or coping skills.

Can he get sole custody if he hasn't seen her for 3.5 years?

Melissa's Question: My ex just asked for sole custody. But he's been living in different states for the last four years and hasn't even spoken with our 6 year old daughter for 3.5 years. Can he get sole custody of my daughter?

Brette's Answer: It's very unlikely unless you have stood in the way of him having contact. Getting some visitation going is likely going to be the outcome.

I'm afraid he'll push for visitation if I ask for more child support

Samantha's Question: We divorced over 6 years ago, and I was granted sole custody and my ex was granted very limited visitation. When my daughter was 3 1/2, she came home from visitation and stated she had been molested. He was indicted and the case entered the legal system. Two years later, the case was dismissed pending further investigation because she was too young to stand trial, there was no hard evidence, and he wouldn't admit to his wrongdoing.

We haven't seen him since the night she came home molested. I want to file for a child support increase, but I am worried about him retaliating by requesting visitation with her. Is there any way to protect her legally from him if I request a child support increase? If I wait until she is 12 to pursue child support modification, can she testify before a judge about what happened and request not to see him and be protected then? Or should I just leave well enough alone and not pursue child support increases in the interest of keeping her safe from him?

Brette's Answer: You are completely between a rock and a hard place and I understand what you're going through. You've completely laid out all of the arguments for and against going for more child support. There is a risk he will ask for visitation if you request it, but you know him and can probably predict how he will react.

There is a difference between criminal cases and civil cases - the standard of proof is much different, so should you have to prove this molestation happened, you are in a different position. The problem is going to be that she was so young when it happened that it will be very questionable how well she can remember it. However, if she saw a Doctor or therapist who can testify as to what she said, how she behaved or what exams showed, then you have some evidence. One thing to consider is whether another dust up over this would be something that would harm his career or current family. If it would, it might be a great reason he would never pursue it.

How can I get my child back if I have sole custody?

Jennifer's Question: I have sole custody of my three children and their father only has supervised visitation at my discretion. My 15 year old decided to live with him due to him convincing her. He doesn't have an address and has a criminal record a mile long, plus he's going back to jail and is an alcoholic. I have contacted the police, the school, and children's aid. This was two weeks ago and nobody will tell me anything. Help.

Brette's Answer: File for enforcement of the custody order if it stills says the child lives with you. IF you changed it to reflect the situation, then file for modification based on the circumstances.

Brette 144x162Brette Sember Family Law Expert

Copyright WomansDivorce.com | Updated February 25, 2023

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