What Should I Do To Ensure I Get Split Custody?

Question:   I have been married for 9 years and am at the point where I would like a divorce. However, having my kids at least 50% of the time is more important to me than the divorce. I believe that my wife is unsuspecting that I want to actually file, but does have access to money. I earn at 6 figures while she makes 40k.

What are the odds of me getting my kids at the least 50% of the time? Does my filing first truly help? Or should I just take the kids and leave if the judge won’t reverse an Order? Can she just pick the kids up from school if it was my duty to do so?

We have a 5 year old and a 6 year old together.  She also has a 16 year old that I am on the certificate for but am not the biological father of.  I believe that he will want to go with his mother.

Please advise me what I should do if I want the kids at least the 50% of the time.  Do I wait until they approach an age where they can choose, and what age is that?

Answer:
There are many questions here so my first response is to contact a domestic litigation attorney in Missouri.  I do not practice in Missouri; however, Cordell & Cordell has many attorneys who are licensed and located in Missouri who would be happy to help you.  In addition to placement and custody questions, you should also consult an attorney to discuss support issues.

I can certainly understand your concerns regarding custody and placement of your children; these are concerns we address everyday.  First, since you are married, you and your wife have equal rights to your children.  This means you can decide to pick your kids up from school and keep them overnight; however, she could do the same thing the next day.  This presents a situation where tempers flare and the police may get involved.  In the end, the children are stuck in the middle causing irreparable emotional damage.  The best advice is to contact an attorney to assist you prior to making any decisions affecting the placement of your children.

In the meantime, you should make sure you are preparing for a custody case.  You should keep a journal which details your interactions with your children.  The journal should be handwritten and you should make notes each day.  You should also consider what third party evidence you have that exhibits it is in your children’s best interest that you have primary placement or shared equal placement of your children.  Keep in mind others who observe your interactions with your children including teachers, coaches, etc.  Also be mindful that your wife may be doing the exact same thing.

After the divorce is filed, you or your wife can ask the court to set temporary custody, placement and support while the divorce is pending.  Courts generally prefer to maintain the status quo while the case is pending.  If you are the parent that the children spent a majority of the time with prior to filing then you would have a strong case for the court setting custody and placement terms in your favor.

There are inherent advantages to being the Petitioner from a trial perspective.  You should consult an attorney to determine whether there are disadvantages to filing first in your state.  From a trial perspective, the Petitioner is the person who presents his or her case first.  Only after the Petitioner has presented his or her full case does the Respondent get to present his or her case.  The Petitioner sets the tone for the trial and has the full attention of the Judge.  A Judge may make up his or her mind on a case just from the Petitioner’s case in chief.  Judges are required to consider both sides prior to deciding; however, after hearing her side all morning he may have sympathized with your spouse prior to your presentation at which point you are in a defensive position for the rest of the trial.  With this in mind, if there are no inherent disadvantages to filing (depending on the laws in your state), you should petition for the divorce.

With respect to waiting until your children are older, it is possible that there is a specific statute in your State that provides for an age for a child to determine or provide impute into the custody decision. When there is a custody dispute in my State, the court appoints a Guardian ad Litem to determine what the best interests of the children are as to custody and placement.  Generally, a child can testify when they are of sufficient maturity to understand and take the oath to testify truthfully. However, the child’s wishes are only one factor in my jurisdiction that the Guardian ad Litem and Judge use to determine the best interest of the child and the custody arrangements. Usually by 12 years old a child can testify, but the court will not give much weight to his choice. As the child gets older his or her wishes carry more weight. By fifteen or sixteen if the child is of general maturity and has logical reasons for changing the custody the court will often abide by the child’s wishes.

In deciding whether to file now or wait ten years to file for divorce, you should contact a domestic litigation attorney to analyze your situation so you can make an informed decision as to what is best for you and your children.

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.

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