Question: I want to divorce my wife. She continually accuses me of chasing women and constantly forces me to leave work early to take care of our 9-month-old daughter because she claims she’s “sick.” I think she just wants me to be at home to always monitor me. She is unemployed and can’t handle taking care of our daughter any extended period of time. She won’t agree to a separation, and if I cannot take the pain and grief anymore, I may have to leave.
Once, years ago, I did hit my wife in the back, and I fear that she will file for a restraining order to keep me from our daughter if I leave, and file other false allegations toward this end, as she did with her previous husband and her older daughter.
What can I do to protect my rights as a father and my daughter’s rights to be with me against such maneuvers? In practice, do I have any chance of getting primary custody of my daughter given my employment and ability to care? What kind of custody arrangements are most often delivered by courts to fathers of young infants?
Answer: You need to contact an experienced domestic litigation attorney licensed in Virginia immediately. Do not make any changes until you talk to the attorney; this includes moving out of the marital residence. It is very important that you do not tell your wife that you are going to see the attorney. You and your attorney can discuss a strategy for filing for divorce and to obtain Temporary Orders on custody and placement right away.
If your wife gets wind that you are preparing to file for divorce, she may file a petition for a Domestic Abuse Restraining Order. Most states have statutes which require the court to not take into consideration the time that has lapsed since the most recent abuse incident. Therefore, she could obtain a restraining order based on that incident which occurred years ago. It is extremely important that you do not engage in any conduct which could be construed as abuse or threatening abuse-verbally or physically. If she doesn’t file the Domestic Abuse Restraining Order until after you file for divorce and temporary orders, this may be something that your attorney can use to show that she is retaliating and that the restraining order is not necessary. If the Court grants the Domestic Abuse Restraining Order, this will have an adverse impact on your placement with your daughter.
When determining custody and placement, the Courts look to the best interest of the child. Many courts now have a presumption of joint legal custody and a shared placement schedule (though the definition of shared varies by jurisdiction from an every other weekend schedule to a 50/50 schedule). Especially when dealing with young children, the status quo is an important consideration in determining placement. It is important that the Court knows that you are the primary caretaker now and that your wife cannot handle the infant for extended periods of time. However, the Court will likely take into consideration the past abuse even if she does not obtain the Domestic Abuse Restraining Order. In addition, the fact that your wife is unemployed and takes care of your daughter during the day rules in her favor when it comes to placement during the day. Placement with a parent is preferable over a third party daycare provider. However, depending on the circumstances of her unemployment and the laws in your state, your wife could be ordered to seek employment. After discussing your case in detail, your attorney will be able to discuss the possible placement outcomes and provide you with advice as to how to proceed.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.