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How can I prevent my soon to be ex husband from getting 50/50 custody of our 5 month old baby?

Dallas, TX |

I want to leave my husband. He has threatened me with joint custody, stating that he will fight for 50/50. I dont think it is logical for him to have an infant for a week at a time. I have been the babys primary caretaker since he was born. If theres a chance he can get 50/50, then more than likely I will sacrifice my happiness and freedom and stay with him so that my baby is not away from me for a week at time :(

Attorney Answers 2


He may very well fight for that...but that doesn't mean he'll get it. The Texas Family Code actually gives parents room to have quite a variety if different parenting plans in place, but that week on, week off business is not really the favored approach anyway. That basically only works if the parents live pretty close to each other and are both willing and able to work well with each other on the tons of little things that go into raising a child. If the parents can't do that, that particular custody setup can easily fall apart over something as dumb as whose responsibility it should be to take the child to a dental appointment: "I don't have time to deal with that! It's already Thursday afternoon, you'll have him next week, and I'm not going to take off work tomorrow for something you can do in four days without it endangering your job." Obviously, in a non-hostile situation, that kind of thing gets worked out. When mom and dad are fighting over which one's trying to "one-up" the other, often it really doesn't. And in the meantime, the kid still has a toothache, and SOMEONE needs to take him.

In the standard possession order, it's very clear whose responsibility that kind of thing is, and for a lot of parents, it just works better not to have that constant switching back and forth and the need to communicate in depth about the child's day to day activities and needs on a regular basis. So if it's a matter of "fighting", a judge would probably not see the 50/50 plan as being such a great idea anyway, if that makes sense. It just doesn't work to do that if it's not something both parents are happy with.

Regardless, if you've got a baby, there's a whole separate plan that is put into place for kids under three, on the theory that they need more stability, familiarity, routine, etc. Typically, if the mom has been the baby's primary caretaker to date, the arrangement would be to try to minimize the disruption to the child by giving the dad less time than he'd normally get and structure that time so it's not as extreme as a whole weekend away from mom, with more time integrated in as the child gets older and everyone gets more comfortable with things (maybe starting out with two or three non-overnight visits a week of a few hours each, then gradually moving toward something closer to the standard schedule). Even if you haven't really decided yet what you want to do, you really should go ahead now and talk to an attorney who regularly practices in the family courts of your county to find out how your judges typically respond when a father demands more time with a baby, because it's just not a predictable thing. Regardless, though, I do not see a judge ordering the 50/50 arrangement in this particular case. I wish you luck.

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I'm so sorry you're having to go through this. It must be really scary.

Ms. Foley is correct that it is unlikely your husband will get 50/50 if you tell the Judge you're against it. Also, for children under 3, the Family Code lets the mother have most of the possession with the child under certain circumstances.

It's likely in your best interest to go meet with a lawyer now before a fight starts or he files papers with the Court, just so you're not scrambling to respond to him. It also might make more sense for you to file papers with the Court first since you want to no longer be with him or married to him.

Divorces are never easy, but, you can make it better by finding the right lawyer to help you get through this.

Disclaimer: This post does not create an attorney-client relationship. This post is for informational purposes only and is not intended as legal advice. This post is not a substitute for holding an in-person initial consult with an attorney.

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