Custody Question


#1

My wife and I have been separated since July of 08, we have a signed and notorized separation agreement. However, recently I have found out that she is encouraging my son to call her new “boyfriend” ,which is also her ex, dada instead of me. Now when I get my son he seems confused as to what I mean and my family mean when they tell him to go do something with dada. My question is, is there a way for me to file for custody before the divorce and if I could possibly file a restraining order on this other guy for psychological abuse or something of that nature? Please help me if you can.


#2

If custody has not been decided by the courts you can file for it and have the case heard at any time before or after the divorce. If you have an agreement that has custody included, you will have to show the courts why you do not feel it is in the child’s best interest that the current arrangement remain in place.

If your ex is alienating the child from you, it may be that you have a case for more custodial time with the child. I do not think that you can file a restraining order on someone for confusing a child. It would have to be that this man is a threat to your son’s safety. If there is no danger of physical harm or neglect then it’s doubtful that you can have the court to rule for him to not have contact with your son.

I suggest that you put in writing your request to the stbx that she stop this behavior at least until the child is old enough to understand that you are his parent. I suggest that you request more time with your child and work out a schedule. These would be reasonable requests and would help that you are making an attempt to work out this issue prior to taking legal action. Make sure that you do this in writing so that there is a record of it and her response. If the stbx continues this, you could file for custody. Make sure that you are prepared to actually do this before inform her that the next step would be legal action. It should not be used as a threat but merely to inform her of your intentions to gain custody due to her behavior not being in the best interest of the child. Be prepared to give her the same rights that you have now, should you win custody and be prepared to go to court. Being jealous of another adult being in your child’s life is not going to be enough to win custody unless the stbx allows it.
If it goes to that point, consult with an attorney that can look over your agreement and tell you where you stand.


#3

You may seek an initial determination of custody at any time if the case has not been litigated. While the courts will give some credence to the agreement which is currently in place, the courts can an will alter its terms if you can show that some change in circumstances has occurred that renders the agreement contrary to the child’s best interests.
Your ex’s behavior is a classic example of her alienating you form the child and would certainly be relevant moving forward with a custody action.
Based on the facts this case is not one in which a restraining order would be issued as the courts will only intervene on such a level if there is an extreme physical danger to the child.
I agree with the suggestion that you speak with your ex about this issue and document your conversations. In the event she does take action to change this behavior I would advise you to retain counsel and move forward with an initial determination of custody.


#4

[quote=“Erin Clarey”]You may seek an initial determination of custody at any time if the case has not been litigated. While the courts will give some credence to the agreement which is currently in place, the courts can an will alter its terms if you can show that some change in circumstances has occurred that renders the agreement contrary to the child’s best interests.
Your ex’s behavior is a classic example of her alienating you form the child and would certainly be relevant moving forward with a custody action.
Based on the facts this case is not one in which a restraining order would be issued as the courts will only intervene on such a level if there is an extreme physical danger to the child.
I agree with the suggestion that you speak with your ex about this issue and document your conversations. In the event she does take action to change this behavior I would advise you to retain counsel and move forward with an initial determination of custody.[/quote]

Thank you for your time and information.


#5

You are welcome. I wish you all the best.