Custody Issues


#1

First, I applaud your efforts to do what you need to for your children’s sake. I wish everyone out there would realize that children need both parents and would work it out.
Second, yes this is considered adultery if he is having a sexual relationship with this woman he is living with. You are still married until absolute divorce is granted. Adultery is a misdemeanor and is probably not going to be prosecuted. If you have proof of their relationship before your separation then you could sue her for Alienation of Affection and sue him for Criminal Conversation(sex). This could do something for your custody case.
That being said…and easier and less expensive way to deal with this to realize that your children are going through this divorce the same as you are. They are scared to be away from you because if Daddy can leave then so can Mommy and then they would have no one. They do not understand that you two don’t love each other anymore and that it’s alright for them to still love you both. Think of all the emotions that you are feeling right now and realize that children are too young to understand all but the most simple of emotions. They feel that if they like dad’s new girlfriend they are betraying you. They will probably feel the same way when you meet someone new. Regardless of how bad your marriage may have been, it was comfortable and all that your children knew. Now they don’t know what will happen next. What happened last time may have been nothing more than not being used to someone new…
The best thing to do is to talk with your children. You are going to have to be the bad guy, but in the long run you will show to be the more stable parent and they will see that. Let them know that they do not have a choice about visiting their father. They need to visit him. If he does not choose to take his visitations, it’s his loss, but if he does then he should have them. You should sit down and figure out a schedule that will not disrupt their school schedule and talk it over with your STBX. Tell him that you will share joint legal custody but that you will have primary physical custody. This means that you both make the major decisions but the children live with you, so all the little day to day decisions are yours.
There is nothing good that will come out of either of you spending thousands of dollars on lawyer fees if you can work it out between you. Don’t agree to everything to keep it out of court because you do have some leverage with the live in girlfriend and the time he has not taken for his children since the separation, but you should try to work with him to some extent for the sake of the children. If he insist on taking you to court you do have a strong case for primary custody.
Get any agreement you make in writing and have it notorized. It’s not the same as a court order but it’s much much cheaper.
Things do get better. Good luck to you and keep us posted!


#2

Should I be concerned about the fact my children get hysterical about having to go. My middle child is scared to go anywhere away from me because she was seriously sick before and in the hospital for almost a week and noticed that her dad did not come see her except for the day before she was released and that was for 2 or 3 hours. To be honest I’m scared to let her go as well because she is still battling her sickness from time to time. It only effects my oldest because she is very smart ad she understands things more than I thought she would. My youngest who are two and four know whats going on, but don’t fully understand. Could it just be that they are around me so much that they don’t want to leave. Could my stbx use any of this against me if I dont’t let them go. I hate to send my children into an environment where he is living with his girlfriend and my children see that. I only asked that he respected that and not to have my children stay in her house. I am not seeing anyone until after the divorce because I don’t feel it is right since we are still legally married and I don’t want my children in that type of environment. I was reading on some divorce sites that state that a judge could infact tell him that neither of us may have overnight guests while either one of us have the children and may tell a parent that they need to have their own house to bring the children too. I may be a little bitter because my stbx never ever made any decisions about the children he always left that up to me. When it can to school, I was the one to meet with the teachers and help with homework. I always took them to the doctor and if they were sick I took care of them, every decision regarding their health and well being, I made them. I think I may be letting that interfere. Could anyone give advice regarding that?


#3

Dear daddysgirl:

Greetings. No, you do not have to let them go out of state if the custody arrangement in the separation agreement does not call for that. However, if he files for custody here in NC, it is likely that a judge will let him have visitation in the state where he lives.
Please limit your posts in the future to one or two questions, as this post is too long. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

Stepmother if you read this, is there any advice you can give to me as far as joint legal custody. My husband and I agreed that I’ll have sole custody, because he is in the Navy and he is always going out to see, so if anything comes up with them it is hard to get in touch with him. With joint legal custody does that cover medical issues. I am perfectly willing for him to have visitation because as I said they need a father, but I don’t think at their young age right now they need to see there father living with another woman when we are still married. What kind of example is that setting for them. I am not doing that, and don’t intend to date until I have that divorce decree. I never was a fan of cohabitation anyway. I am just trying to do the best thing for my children. I am all they have had to lean on for the past year or so. There father was gone on a six month cruise last year and returned in March and barely cane to visit them when he got back. I knew something was wrong then. When we officially separated in the end of March, he never came home nor asked for them, until he moved in with the woman. How can I honestly have his input on legal issues with them when he never ever made a decision regarding their health, their schooling, or anything else. I am trying to keep my children from hurting anymore because before they have always wondered why daddy does not come home anymore or why he doesn’t call them. My oldest would always call him and he would never answer the phone and then decide to call two or three days later and pretend like he never got her messages. Or he would call to tell them me he was going away on the ship for awhile. My oldest is really suffering and she is only eight, I think because she feels my pain. I ask you stepmother because I noticed you give pretty good advice to some of the other members. Please help I am trying to do right by my children. Do lyou have an email address where I can contact you more instead of like this. Thanks for any help.


#5

My understanding is that basically both parents will get some sort of custody/visitation rights unless this would somehow be harmful to the kids. The fact that you don’t approve of how your estranged husband is living his life doesn’t really matter.

You state that he has never really been involved with schooling, health, or anything else with your kids. Maybe he is now growing up and “this woman” is really a blessing in disguise? Anything that makes him act like a father has to be good. Right?

Someone recently commented that my two kids seem happier now that my wife moved out and we no longer argue. She commented that 3 out of 4 ain’t bad. As adults and parents, sometimes we have to take things on the chin for the good of our kids.

Best of luck working through this.


#6

It does matter how he is living his life when my children are involved. They are at the impressionable age and That is not something that they should be around. My 4 year old just told me that this woman is putting makeup on HIM, he is a boy. He just told me that he slept in the bed with my stbx and his girlfriend. Now that he has no business doing. How is it good for my children to be around a lying, cheating, adulterous woman and for him at that, but he is their father. If he was trying to be a better father then he would be around more than he is. I understand when he is away on his deployments he can’t be around. He should at least call my children to check on them everyday, he doesn’t do that. Once or twice a week for two minutes is all my children get. My children see him once a month every three or four months for a couple of hours and then when he decides he wants to get them. We had worked out a way for him to get them every other weekend and he never committed to that. It was excuse after excuse. My children need a father on a regular basis not a father that decides to show up every three or four months when he wants to. My children feel that he does not want to be their father anymore, that he is his girlfriends childrens’ father. He is helping her raise her children and not me raise ours. No matter how much I tell them he loves them and he is their father, they still are hurting.


#7

The joint legal custody shouldn’t really be an issue due to the fact that he does not make decisions about the children anyway. This is basically if you were to want to enroll them in Catholic school you would need his consent or at least make sure he had no strong oppositions to this, or if one of them needed major surgery he would need involved. This doesn’t mean that if you take them to the doctor for a the flu he needs to be notified…only the big stuff.

The live in girlfriend…I can only say this. She may be the one pushing him to see his children. I did this with my ex. From day one I pushed him to visit and spend time with his children. His ex didn’t like the fact that I was involved but the children didn’t know that it was me pushing him. I think it helped his children to see their father regardless of whether it was his decision. Maybe he’s serious about this woman…
I know it’s not an easy thing to deal with but there are very few traditional households now and your children are going to see it either for themselves or with their friends. My husband’s children were surprised at how many children in their own classes at school whose parents were divorced and who had stepparents.
As I said in my previous post, you do have some leverage on all of this due to him living with another woman. If it goes to court you could always say that you do not want to send the children to stay with him at her home until you are at least divorced. My husband’s ex had four boyfriends in the first 6 months after they separated. She has been with the last one since then and he lives with her and the children (they are there every other week). It was a personal decision for me and him that I didn’t stay over while his children were there until we got married. We didn’t want the children to think that was the right way to do things. All we can do is hope that when they are older they will remember that and have a some sense of morals about relationships. We couldn’t control what his ex did while the children were with her. They had a claus in their separation agreement that said that neither could have overnight guests of the opposite sex other than close relatives while the children were in the home. She didn’t follow that. We knew her boyfriends stayed over with the children there but we couldn’t prove it and it would serve no purpose to except to waste our time and energy. We followed it, not because it was in the agreement, but because it was the right thing to do. We can only control ourselves.
They get hysterical…this is why I said that you will have to be the bad guy. As the lawyer posted, if he files in NC he can be granted visitations in the state he lives in. Right now, you have some negotiating power since there is no formal custody arrangement. In my opinion, I believe that you need to take control of the situation. Sit your children down and talk to them. Let them know that he is their father and he wants to visit with them (even if it’s not his idea). Work out a schedule that you can stick to, unless emergency comes up, and send them off to visit. Let them know that they can call you ANYTIME while they are visiting and make sure that you call them too…at least for the first couple visits.
This will be easier on the younger children because they adapt to situations easier. The older ones will need to understand that though they may not like the situation they will need to adapt to it. The only way they are going to get used to you and him not being together anymore is to visit him. The only way they are going to get used to being without you and visiting their father is to visit him. Right or wrong, the only way to do this is to do it. They are likely to always want you two to get back together, but you need to be honest with them that this is the way things are now. As they get older they will start to develope their own opinion about him and his lifestyle and it will come back to him, believe me. You do what you believe is right. His life and the way he leads it is not your concern, he is the one that will answer for it. Let your children know what YOU believe. And you can do this without talking badly about their father. Let them know that you may start dating after you get your divorce, but you that while you are still legally married, you don’t feel right about it. Let them know that THEY need to voice their feelings about this, but that unless they can give valid reasons for not visiting their father, and you have to decide validity, they are going to go.

His situation, and yours for that matter, is likely to change numerous times in the next couple years. Things that upset you now, in a year may not matter. Talk to your ex. Let him know how uncomfortable it makes you and the children that he lives with another woman without the benefit of a divorce from you. Let him know that you are only going to do this FOR the children because if it were not for you knowing they need their father, you would never have anything to do with him ever again. Let him know that you are going to call the children one time daily while they are with him and give him a specific time. Let him know that while the children are with him his time is their time and it should be ALL about them.
As the attorney posted, you do not HAVE to let them go right now, but in order to avoid court and eventually having to send them for visits, I would work it out with him. If you can’t talk with him or can’t agree with him, you could consider trying to talk with her…I know that sounds unlikely but keep in mind that if she is going to be around your children, you will eventually need to deal with your feelings about her. She may not be a terrible person…you have no reason to become her friend…but maybe she has a way to talk to your STBX and could be a go between. As I said this is in case you can NOT talk with him. This is preferred since they are his children.
I have an e-mail address and believe it’s linked on the posts or you can click on my name.


#8

Everyone:

First, note that each jurisdiction is different. Some attorneys in counties other than Wake have informed me that almost always the mother will be granted primary custody. However, in the jurisdictions where I practice most couples get joint custody. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#9

Hi, I am in s situation where my soon to be ex has moved out of state and wishes to have our children from time to time. We have a separation agreement that states I have sole custody and there is no set visitation because he did not want any. He now decides after 7 months that he wants to get our children out of state where he is living with his girlfriend. Do I have to let them go out of state or can do I have a say in where he takes our children if I have sole custody. Could someone please explain the custody laws in North Carolina. There is no court ordered visitation nor have we worked out visitation, he left after telling me that I I’ll have sole custody. Now he wants joint custody and wants to take me to court if I don’t let them go to Virginia. I am not trying to keep the children away from him, they need a father, but do I neccessarily have to send my children with him if there is no set visitation, and with us still being married he is living with another woman? My older children do not want to go because they don’t like him living with this woman and hearing her call him “baby”. We are a christian household and even though we have this separation agreement, aren’t we still legally married? Is this considered adultery (He was with this woman before we even separated). I am so confused, could someone help me out. There has to be a reason why my children kick scream and cry because they don’t want to go to this woman’s house. I am trying to keep this out of court, but now this man wants to play hardball. I am trying to do right by my children, I have tried and tried to get him to visit our children and come see them and spend time with them, He never had the time. He now decided that he wanted to get them two days after Christmas until New Year’s Day. I was kind enough to let them go, but my two daughters did not want to go only my 4 year old son. They haven’t seen him in 3 months. Now because they don’t want to go be with him, I am now the bad guy because I wouldn’t force them to go with him this week. I literally have to talk to my daughter for 30 minutes to calm her down because she is afraid to go. It scares me because I wonder what happened the first time I let them go with him. Should I be concerned or could it be that she is around me so much that she doesn’t want to be away from me. Please help, I don’t know what to do.