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I am divorced and have a child with the previous marriage. Can my new wife have my parenting with my child?

Aurora, CO |

I am the primary parent and have my son 9 months out of the year. I want to join the military and was wondering if it was possible if I deploy or if I have training, that my wife will be able to have my son. what steps do I have to take in order to make that happen. My ex wife will do anything to take my son away from me at any given moment. I know if I have to give my son to her chances are I will not see him again and neither will my wife. What can I do? My wife has been around my son since he was one and has cared for him when his mother hasn't.

My ex is already in the military. She works 14 hour days and always leaves him behind at others homes. she is not very fit to take care of our son for long periods of time

Attorney Answers 3

Posted

I have to disagree somewhat with my colleagues here. The Colorado Court of Appeals, in its 2007 opinion in Marriage of DePalma, 176 P.3d 829, held that the military member being deployed in that case could designate his new wife to look after the children from his previous marriage during his parenting time while he was deployed overseas. That was a fact specific decision, so it cannot be used for the proposition that any military parent being deployed can designate his/her new spouse to care for the children in the military member's absence. The Court of Appeals made a point of noting that this decision did not give parental rights of any kind to the stepparent. It just empowered the military parent to decide who would care for his children during his parenting time while he was deployed. So, you can file a motion with the court asking for the same treatment, and the ultimate result will depend on the evidence the court hears about who you people are and what is in the children's best interests. It would be wise to be represented in that process by a competent family law attorney

www.karlgeil.com. This answer is provided as general information about a legal issue, is not legal advice specific to a particular case, and does not create a lawyer-client relationship with the person asking the question.

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Posted

No. Your new wife is the step-mother and has no legal rights to have parenting time with the children. Only natural parents or adoptive parents have the rights to parenting time. Your choice to join the military and deploy will dramatically impact your current parenting time arrangement and likely end up with the other parent having the majority of the parenting time. You can not delegate or proxy your parenting time to a spouse, parent, sibling, etc. So, your ex-wife will be in excellent position to take your son away from you by you joining the military. So, you need to seriously consider whether the career change is worth it. Your son needs you. Yes, being in the military is admirable. However, you can't beat being a great parent and role model to your son.

The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice. Mr. Leroi answers questions on Avvo because he strongly believes in public service from his years as a judge, magistrate, and prosecutor. If you need to ask any follow up questions because my answer did not fully address your question, feel free to call Chris or post an additional question. Thank you.

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9 comments

Asker

Posted

my ex is military too

Christopher Daniel Leroi

Christopher Daniel Leroi

Posted

That could pose to be a problem for her then as well, if she is subject to deployment.

Asker

Posted

she is always subject to deployment. Right now our agreement states I get my son if she has him and deploys. If she is not available and neither am I, can my wife have him? He has a sibling that is our child and is growing up with our child

Christopher Daniel Leroi

Christopher Daniel Leroi

Posted

Possibly. I would seriously sit down with an attorney and talk about this and see if you can draft up an agreement.

Asker

Posted

What can I do to make her agree to such a thing?

Christopher Daniel Leroi

Christopher Daniel Leroi

Posted

I am not sure. You know her better than the rest of us. Mediation is normally extremely helpful.

Asker

Posted

took two mediations to get where we are now and almost a court hearing

Asker

Posted

A FULL day court hearing because she was going for full custody

Asker

Posted

what if she is appointed guardianship? Then does she have rights?

Posted

I agree with attorney Leroi. While service in the military is important, your current spouse has no rights in regard to your son. Good luck to you all.

This answer is for general informational purposes only and should not be relied upon for your particular case nor is it intended as legal advice. I have not reviewed your case nor have I met with you and the answer to this question does not in any manner whatsoever establish an attorney/client relationship.

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