Father should get fair custody hearing

I have a dear friend who is going through a very difficult time with his ex-girlfriend, with whom they share a child. He has moved on and is currently in a serious relationship with a woman he plans to marry. The problem is he feels that his life is on hold because his ex-girlfriend is taking him to court for child custody and child support.

In the past, since the child was born, it is now just under 10 years old, the parents have agreed on shared custody and no child support because the dad is with his child more of the child's waking hours than its mother is.

She has found a new relationship and is now engaged to be married. The father lives out of state. In order for him to keep his child with him, is this a matter of whose pockets are the deepest?

Does he have a chance since the system is set up for the women to have custody of the child?

Do you have any advice for a father who spends five days a week with his child and is falling into a depression for fear of losing his child?

-- Anonymous,

Las Vegas

When two people make a baby, but don't marry and then split up, one of several things can happen regarding child custody.

Sometimes, the father passively slips away. The mother defaults to the sole caregiver. Years later, the now adolescent or young adult child might have some fragmented experience of the birth father, or perhaps have never met him at all. (Yes, sometimes it's the mother who slips away, but this is a statistical rarity in our culture.)

Sometimes, the parents agree in good faith on a just, working plan for shared custody and co-parenting.

Or, sometimes the parents go to court and negotiate a legally binding custody agreement.

I interpret your letter, Anonymous, to say that, for the past 10 years, these two parents have negotiated custody in good faith, with the father having the bulk of the time spent with the child.

Now, the mother is going to court to fight for (I assume) sole or primary custody, and the right to move the child out of state. If this is the case, she might be in for some surprises.

Modern laws largely restrict divorced mothers and fathers, for example, from making unilateral, willy-nilly decisions to relocate minor children across state lines. If a divorced parent desires to relocate, he/she may leave without his/her child(ren), may convince the other parent to allow the child(ren) to leave the state or go to court and try to convince a judge that there is a compelling reason why the other parent should be subordinated to the role of geographically not-proximate parent.

And you better have a damn good argument. It is no longer a foregone conclusion that modern-day family courts render opinions with an automatic prejudice for the mother, especially with older children (older than infants, toddlers, preschoolers, etc.). Modern judges understand that both present mothering and present fathering are important to the well-being of children.

Now, the couple about whom you write has never married. And, apparently, they have never had a legally binding custody agreement. But, still, I'm saying "yes," this father has a chance at a fair hearing and just judgment, all the more so because of the history of his preponderant presence and constancy with the child. Establishing this historical precedent and his parental credibility in court should be relatively easy. His should be a significant and substantive testimony.

Of course, there is, in my experience, a sometimes capricious whimsy in courts of law. There are no guarantees, but I know if your friend was sitting in my office, I'd urge him to work backward from the worst-case scenario. To wit: even if he loses in court and the child leaves the state to live with the mother, it is important that the child sees the father fighting hard against this.

Even if the father's relationship with the child -- its presence and continuity -- is grossly compromised for the next several years, it will bode well in their future communion that the child remembers his father losing this battle in anguished protest.

Self-evidently incompetent or abusive parents notwithstanding, it's simply wrong for a divorced parent to geographically carve the other birth parent out of a child's life simply because it's more convenient vis the new love interest. It is a disturbing arrogance.

Originally published in View News, Nov. 17, 2009.