Custody question


We don’t have a custody or consent order and have been divorced for 1.5 years, apart for almost 3. I have our 10-year-old daughter 100% of the time and he has always gotten our 3-year-old son every other weekend, with a few overnights during the week sprinkled in at his convenience. In addition, he worked out of state for a year of this time and only saw the children every-other-weekend.

I understand that without an agreement, we both have equal access to the children. But, if he were to file for sole physical custody of my son wouldn’t he have to prove that the current custodial arrangement we’ve been following in practice was not in the child’s best interest? In other words he would have to prove that the child would be better off living with him full time with me getting visitation?

I’ve heard that judges are more inclined to stick to the status quo provided that the child is being well-cared for and in a good environment, doing well in school, good health, etc. But I’ve also heard that they are inclined to grant 50/50 custody even though it would change the status quo since they need both parents.

I know you cannot predict what a judge would do, but I’m just wondering if I am at risk of losing my role as custodial parent after all this time? And also would I be at risk of having to share time 50/50?


You are correct that either of you could make a claim since there are no current orders in place. However, he would have the burden of proof on him if he filed for custody. He would need to show that what you’ve been doing for the past 3 years is not in the children’s best interests and he now wants custody. I don’t know that he’d have a good case for 50/50 since he has spent very little time with his daughter and hasn’t been trying to have 50/50 of the son either. It might be in your best interest to pursue a consent order on custody, outlining your primary custody and his visitation schedule. You will need to have a judge sign off on it when you are done.