Establishing Joint Physical Custody in Divorce Following a Long Separation
My question involves a child custody case from the State of: California
Background: While stationed on active duty in the lower 48 my wife decided to move to CA with our infant. She filed for legal separation but we both ran out of money with our lawyers and never came to terms for custody arangements. We are still legally married with no written parenting plan and have come to mutual consent for custody, visitation, and child support during the past three years. Precedent during this time for visitation has consisted of me flying to see him on average every five weeks for 4-5 days, the maximum use of my leave balance, except for one deployment upon the completion of which I used all of my accumulated leave to have a two week stay with him. All visitations are overnight with me at my parent's house who leave nearbye.
My service commitment ends this year and I intend to move to the town they live in to be with my son. We intend to complete our divorce and establish an official parenting plan that meets all of our needs once I arrive and establishes the circumstances of my life (job hours, income, etc). I desire joint physical custody and she has expressed that she wants sole custody with visitation for me. There is no history or documention of any illegal action from either parent. Child is 4, will be near 5 by time of mediation.
Questions: Basically what are my chances of gaining joint physical custody? What are reasons I would be denied? What actions can I take to posture myself for reconsideration as the child ages if I don't recieve joint physical custody? Are the circumstances surrounding the precedent visitation arrangement of any relevance (ie, i the federal government prohibited me from spending more time with my son) in evaluating a new arrangement under different circumstances (I'm free now and live near my child)?
Re: Establishing Joint Physical Custody in Divorce Following a Long Separation
Joint physical simply means that both parents have some sort of physical custody...it does not mean a 50-50 timeshare.
If it is a 50-50 timeshare you want, it is unlikely to be ordered if Mom disagrees. She has been his primary caregiver, so she has status quo on her side; the likelihood is that Mom will be the primary custodial parent and you'll get ample visitation.
Future reconsiderations once custody is ordered depend on a change of circumstance, and the child aging is not generally enough to take it back to court later.
As far as your military service goes - well, that was a choice you made. The government didn't prohibit you from anything.
Re: Establishing Joint Physical Custody in Divorce Following a Long Separation
Thank you for your insight.
I do have a quibble with your last comment though. Members do voluntarily incur an active duty service commitment for whatever their reason, however if their spouse decides to leave after the dotted line has a signature, well then the circumstances surrounding that voluntary decision have changed. At this point the service member is screwed, because as you see, the "status quo" will now forever favor the non-military spouse. The SSCRA needs to be amended to prohibit removing children from the local area of the serving member until his or her current service commitment is up. If the member then choses the military, well, then you're right, that's what they chose. Otherwise, service members deserve a fair chance at parenting as any other profession that won't incarcerate an employee for quiting due to family circumstances.
Re: Establishing Joint Physical Custody in Divorce Following a Long Separation
Hon, please don't misunderstand.
I have a daughter who is military, currently deployed in Afghanistan - and her little girl remains here. We're all too familiar with the family law aspects of serving the country.
It is not always fair, but it is what it is.
Was Mom morally right in taking the child out of the area? No - probably not. But this is less to do with military obligations than it has to do with a realistic legal viewpoint...and that is, in most States the only way the courts will not allow relocation is if the other parent is able (and willing) to be the custodial parent. In your - and many other - choice of career, this simply isn't practical hence Mom would likely be allowed to relocate regardless.
Y'know? :)