My child’s father is immature and careless. I want full custody.

Posted on Sep 30, 2019 by Katie Carter

On Friday, I talked about cases where moms allege physical, sexual, or emotional abuse. Those cases are super complicated, not to mention incredibly risky. But what about cases where dad’s behavior maybe doesn’t amount all the way to abuse, but it’s careless, irresponsible, or inappropriate under the circumstances? What does a mom do when she wants to protect her kids and provide a consistent (not to mention developmentally appropriate!) standard of care?

My child’s father is immature, careless, and inappropriate with the children. I want full custody.

This is a pretty common refrain around here.

My first question is, “What do you have now, as far as custody?” That will determine whether it’s really worth fighting for or negotiating for more time.

Because fighting or negotiating are your only options. If there has been a material change in circumstances since you entered into a custody agreement or a judge issued an order previously, or if you’ve never had custody and visitation determined, you can file petitions with the juvenile and domestic relations district court for custody, visitation, and child support.

If you and your child’s father can reach an agreement, you can decide at any point to re-negotiate the terms of custody and visitation.

Is it worth fighting for more parenting time?

Whether it’s worth going to court depends entirely on what you have now. If he only has every other weekend as it is, chances are pretty good that you won’t do much better in court. If he has more time, it’s worth talking to an attorney about your specific concerns and how she thinks that those might play out in court.

Typically speaking, we see that courts like both parents to share legal custody. Legal custody refers to the right to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. These types of things, according to the court, are so central to parenthood that they’re almost always awarded jointly to both parents.

Physical custody is where most parents fight (that is, assuming that they’re going to fight), because it has to do with where the child spends his or her time. Physical custody can be awarded primarily to one parent (with visitation to the other), shared between two parents (with the non custodial parent, the parent who has the child less, having 90 or more day sin a calendar year), or split (meaning that one child might go with one parent, and the other go with the other – this is unusual).

We find that, in cases where the parents fight over custody, something kind of like shared custody is often awarded. But custody can be shared to all sorts of different degrees; it can mean anything from 90 days to 182.5 days (which means that you’d split the time equally 50/50 over the course of a calendar year).

It also matters what, specifically, you’re alleging. We often hear things that the courts wouldn’t weigh too heavily in our client’s favor. If he lets the child sit in his lap while he plays video games, for example, it’s probably not going to be viewed as catastrophic. (Though, I can tell you, as a super anti screen-time mom, I’d have a cow over this one, too!) If he comes home with small bumps and bruises, that’s probably also not enough. (Please, don’t photograph them all, especially if they involve baby nudity, and certainly not if your child is old enough to understand what’s going on – it’s damaging, and doesn’t play out well.) Small accidents happen, even to the best of parents.

Something like drug or substance abuse might be good, but it all depends on what evidence you have and what we can prove. We may be able to ask for drug testing – and, of course, knowing what he’s taking can help us identify the most appropriate drug test to ask the court for.

Courts often accept that moms and dads do things differently. You’ll need more than a difference in parenting style and core beliefs in order to demonstrate that a change in custody is really necessary.

It’s almost always worth trying to negotiate something different! After all, there’s no limits, really, to what you can agree to (aside from, say, him giving up his parental rights completely – that’s not a contractual thing) in a custody agreement.

What if I agree to give up child support in exchange for the custodial arrangement I want?

That’s a possibility! And it’s one that often gets some traction with dads, too. Legally, I feel like I have to say – he is required to pay child support, and he SHOULD pay child support. But, technically, you could waive or reserve child support, if it gets you what you want custody-wise. (Assuming, of course, you can afford to provide for the child without receiving child support.)

The good news here is that, if you do waive or reserve child support, you can always petition the court for it later, and the court will award child support based on the guidelines. In the meantime, though, you’ve got all sorts of time that you’ve had the children according to your preferred custodial arrangement, which means you can gather evidence about how well they’re doing. Your child’s father would need a material change in circumstances in order to file for a modification of custody and visitation, and he’d have to show that a change from what you’re currently doing is in their best interests.

It can be a valid strategic move to waive or reserve child support, whether permanently or temporarily, in order to get the custodial arrangement you want in place.

It’s ALWAYS a good idea to talk to a licensed, experienced, Virginia divorce and custody attorney before you make any big decisions, just to make sure that your plans are specific and strategically designed to yield the results you want. Whether you hire an attorney or plan to represent yourself, it’s good to have as much information as possible. Consider, too, requesting a free copy of our custody book for Virginia moms.

For more information or to schedule an appointment, give our office a call at 757-425-5200.