Can Primary Parenting Father Retain Custody?

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Dear Esq.,

I’m hoping you can send me in the right direction. I’m a single parent who has had primary custody of my five year old son for the past four and a half years. My ex-wife has now decided it is time to be a mother and is taking me to court next month to try to obtain custody.

Do you know of any resources for fathers where I can find any useful advice or information? I will of course be represented by counsel. I’m just very concerned about losing my son and am looking for any facts, figures, or advise that may help keep this from happening.


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Dear Jim,

You don’t say whether the custody you currently have is simply how it ended up, without it going through the court, or whether there is a court order.

Generally speaking, if you currently have a court order granting you custody, and your ex-wife has suddenly reappeared on the scene, and is attempting to have the order modified, then, depending on what state you are in, it should be fairly difficult for your ex-wife to have custody reversed. This is by no means a given, however, and it is important that you work with an attorney who understands what is involved in representing a father in such a case.


You should also be aware that even though it may be difficult for your ex-wife to reverse custody, she will likely be entitled to some sort of regular timeshare. You should not only anticipate this, but should be agreeable to it, absent good cause to the contrary, as if you are unwilling to let your ex-wife spend time with your son under a timeshare agreement, the court may be more likely to consider her request to change custody.

If there is no court order, then her chances may be slightly greater, and in large part it will depend on how each side of the case is presented to the court. In this case, it will be very important that your lawyer and you prepare your case so that you can present much of the same evidence to the court which you would have during an initial custody determination. Along with this, you will also want to include evidence of how you have cared for your son for the past four and a half years, how these circumstances came to be, and why it would be detrimental to your son to suddenly have custody changed. Again, be mindful that the court will want to see evidence of your willingness to allow mother and child time together; if the court thinks that you are unwilling to allow them time together at all, the court will be more likely to consider switching custody.

As for resources, it is rather difficult to offer any specific recommendations without knowing where you are. Try linking up to local single parent and fathers’ organizations, as well as the local chapters of similar national groups. One such national organization is the Children’s Rights Council (202-547-6227).


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