Ask A Lawyer: How Does The Judge Decide Custody?

Tom in Missouri

I have been divorced for approximately 9 years. I have 3 children ages 14, 11 and 9. I have joint custody with my children’s mother but she is the primary custodian. I would like to get 50/50 custody but have been told by my former attorney that no judge will grant 50/50 custody because this arrangement has not worked will in this county. Can you advise me on how to get 50/50 custody if this is the reasoning behind this type of previous judgment?

I am not licensed in Missouri.  You should always consult an attorney in your state for to determine the specific laws of your state.  Normally a modification of custody requires a substantial change in circumstance.  Once a custody schedule is in place it is difficult to change that schedule without a change in circumstance or an agreement of the parties.  If you have been following the same schedule for the last nine years and nothing has changed, it is unlikely a judge will change the order.   That being said the likelihood of a Judge approving a 50/50 arrangement will vary from Judge to Judge.  50/50 will only work if both parents want it to.  You also need to live in close proximity to the other party to make getting the kids to schools and activities workable.  Although there is a trend toward shared parenting, there are still many Judges that believe it is too disruptive for the children.  This is why consulting with an attorney familiar with your Judge is so very important.

Bob in Pennsylvania
My wife had an affair and has continued the relationship for the past two years. We are now divorcing and using a mediator. I have a question about spousal support and if I have any obligation to pay anything since she had the affair and is the one seeking the divorce. I am willing to pay child support for my 13 year old but do not feel I should have to pay spousal support because she is clearly at fault due to the affair. Is there any precedent for my argument?

I am not licensed in Pennsylvania.  I strongly recommend you consult an attorney in your state to determine the law with regard to spousal maintenance.  Some states will consider a spouses infidelity when determining whether spousal maintenance is required.  However, if you live in a no-fault divorce state it will likely have no bearing.  In a no-fault state, spousal maintenance will more likely be decided based on the economic circumstances of the parties.  Some states will limit the amount and time support can be paid.  Others may not have such restrictions.  

Aaron in Florida
My wife left me about 6 months ago after cheating on me. The divorce is in process. She filed for full custody. I attempted to file my response and counter petition, but my counter petition was not filed due to a lack of money. I can not pay the filing fee of $295. My lack of money is likely to cost me the custody of my children. Are there any state agencies or programs that you know of that offer financial aids or long-term loans for divorcing fathers?

I am not licensed in the state of Florida so I cannot advise you about specific programs they may have available.  However, most states do have programs to assist those that do not have the funds for private counsel.  I recommend you check with your local or state bar association.  They may have a list of attorneys that will represent you pro bono (for free) or at reduced rate.  Your community may also have a Legal Aid agency that represents low income individuals free of charge.  The court or clerk’s office in your county may also have a list of agencies that can assist you.   

Robert in Colorado
My income has decreased dramatically since child support was first ordered. I applied for a modification and we were given a deadline to supply our financial information. We both met the deadline and they ruled my support payments would drop from $763.00 a month to $298.00 a month. My ex kept calling me, demanding that I continue to send in my paycheck stubs to child support even though a ruling was already made. I told her if they asked for more, I would provide everything they requested. She contacted the child support office and complained. They said they would set a court date and that I would have to continue paying the original $763 .00 until the court date. I am confused since a decision had already been made.  

I am not licensed in Colorado.  As the laws regulating child support will vary from state to state, I recommend you always consult an attorney in your state.  I must say I am confused as well.  If a court order was entered lowering your support, I am not sure why it would increase without a court order being entered.  I suggest you contact the court and ask for the most recent order to determine your current order of support. I also recommend having an attorney review the orders and represent you at your court date.  

Edwin in New Mexico

How do I go about getting visitation with my children during the summer? It is not in my divorce decree.  

I am not licensed in New Mexico.   Since not every state addresses visitation in the same manner, I recommend you contact an attorney in your state to determine the law with regard to visitation in your state.   Without reviewing the provisions regarding visitation in your Decree it is difficult for me to advise you on what visitation you do or do not have.  Assuming the Decree is moot on the subject, you did need ask the court to enter an order regarding summer visitation.  Some states have a standard set of visitation guidelines that include provisions for summer or extended visitation.  Contact an attorney to determine if New Mexico has such guidelines.  If they do, it should not be difficult to ask the court to implement these guidelines.  When guidelines exist the standard summer visitation is normally ½ of summer for each parent.  This time may be increased if you live far away and are not able to exercise regular visits throughout the school year.  Regardless, the first step is to file a Petition with the Court to address this issue.


Ask A Lawyer is powered by the father-friendly attorneys of Cordell & Cordell, PC.

Clarissa Finnell is an Associate Attorney in the Indianapolis office of Cordell & Cordell, P.C. She is a member of the Indianapolis Bar Association and has been licensed in Indiana since 1997.

Read more about Clarissa Finnell.




 Dorothy Walsh Ripka is the Team Leader of the Cordell & Cordell, P.C. offices in Dallas, Fort Worth and Memphis. Ms. Ripka is a seasoned attorney who has devoted her practice exclusively to domestic relations. She is licensed to practice law in Texas, Missouri and Illinois.

Read more about Dorothy Ripka

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One comment on “Ask A Lawyer: How Does The Judge Decide Custody?

    My son has been living with me for over 4 years but the court awarded her primary custody. Need to first get custody of him cleared so that she does not try to take him. Due to her situation I am also looking to get custody of my other two. She has not had addiquate living conditions in the past two years and have not had steady employment in place to care for the children.

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