Who would receive child custody? 26 Answers as of August 15, 2011

My question is that my boyfriend of 3 years and I have a 8 month old son together and we live together, and we been currently having problems. Every time hes mad at me he says if we break up my son will stay with him and live there, and of course I get upset because I would want my son to come with me. He says because he has been at his job for a long time and makes more money then I do, and the place we live in is his, and the baby has his own room, and he knows how to cook and I dont that the court will side with him. I have a decent job to, I am new although, I work as A Unit Secretary at a Hospital and havent been here long, I am on call but I bring home about 1200-1400 a month. No I dont know how to cook and I dont bring home as much as him, and I would get a place to live as soon as I moved out, but With all of that said would I lose him to my bf? He says I would have to make sure I have a 2 bdrm apt so my son has his own room and does that matter? Could I have a 1bdrm place or would I need to make sure my son has his own room right now? He does this alot and then we make up, but Im getting tired of it and stressed out. Can I file for custody without him knowing so if we do break up in the future I know my son will be with me in the meantime while were sorting things out with the courts.

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Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
This would be a decision for a Court after a hearing. The Court looks for the best interest of the child but not necessarily who makes the most money.
Answer Applies to: Alabama
Replied: 8/8/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
At his age, the separate room is not so much an issue. Eventually it may be. It sounds though like he is just trying to scare you into staying which are tactics people sometimes use. Also, since you are not married, you have SOLE legal custody of your son until he were to file papers with the courts to request some rights. That is the law in WI.
Answer Applies to: Wisconsin
Replied: 8/5/2011
Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
You will need to commence a paternity action. He will receive notice. The Court will adopt a parenting plan/residential schedule in the child's best interests.
Answer Applies to: Washington
Replied: 8/5/2011
Rice & Co., LPA
Rice & Co., LPA | Kollin Rice
In Ohio, an unmarried mother has sole custody of her child unless and until there is a court order to the contrary. If you left with your child, he would need to file in court to get custody or even visitation rights. That being said, it is not impossible that the court would ultimately award him custody. A court would consider who is the more capable parent and who would have the most suitable home for the child. Duration of employment of a parent is not likely to be a major factor. Number of bedrooms might be a factor, though perhaps more so with older children. If you move out and take your child, you should make sure that you have all your ducks in a row. And you should learn to cook. It is not that hard, and it may represent a deficiency that would be held against you. At least get a few practical recipes that you can master. Your boyfriend would probably be glad if he didn't have to cook all the time. On the other hand, if he is abusive toward you - and your description suggests that possibility to me, you should make sure this is legally documented. That may also be a factor in future custody disputes.
Answer Applies to: Ohio
Replied: 8/4/2011
Petit & Dommershausen SC
Petit & Dommershausen SC | Tajara Dommershausen
If paternity has not been dealt with in court, you have sole custody and placement. He would have to bring a paternity action to get any placement. After paternity is established in court, you would be sent to mediation to try to work out a plan. If you guys can't come up with an agreement, a guardian ad item is appointed to determine what is in the best interest of the child. The statute requires the court to maximize placement with each parent. .
Answer Applies to: Wisconsin
Replied: 8/5/2011
    The Coyle Law Office
    The Coyle Law Office | T. Andrew Coyle
    There are a list of factors that a court would like at to determine custody. Those factors can be found at 750 ILCS 5/602 - and they do not include the income of either parent. One factor is the child's adjustment to his home, school and community - so it is always beneficial to have a stable home where the child will be comfortable, but that is only one of the 9 factors. If you choose to file for custody, you will need to notify your boyfriend as he has a right to respond and make his case in such a proceeding.
    Answer Applies to: Illinois
    Replied: 8/4/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    You are asking a big picture question and one that really cannot be answered without getting more information. Generally, a child this age would be with a mother but that is not always true. The court looks for what is in the best interests of the child so all this information would help the court in reaching these decision. I think it would be best for you to consult directly with an attorney so that the issues can be fleshed out better.
    Answer Applies to: Connecticut
    Replied: 8/4/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    You should contact an attorney immediately. Your boyfriend will not automatically get custody of your son based on his income. The courts goal is for each parent to have frequent and continuing contact with the child. If you leave and find your own place, he will be required to pay child support to you. There are many factors which the court will look at in determining custody. Once factor will be the amount of time that a parent has to be with the child. Additionally, you will not be penalized for having a one bedroom apartment. You may wish to take steps for filing a request for custody and visitation prior to the time that you move out of the house. You do not need to serve the paperwork on him right away.
    Answer Applies to: California
    Replied: 8/4/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    Your situation sounds as if it is going from bad to worse. Trying to stay together without working on improving the relationship ensures things will not end peacefully. If you know the relationship is over, you should consider filing a paternity action to establish your boyfriend as the biological father and at the same time file for custody and ask to set up a visitation plan for the father. The courts will award primary physical custody to the parent who provides the day to day care for the child. Unless I am mistaken, even though the father may be participating in the child's life, you are providing that day to day care for the 8 month old son. The courts would not award the father custody just because the father has income from his employment. If you intend to file for custody and go to court, the law requires that the father be given proper notice of any hearing. Under the constitution, parties to any legal action have a right to due process.
    Answer Applies to: California
    Replied: 8/4/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Why would you file for custody? You can't. You already have sole custody. Until and unless he files to legitimate the child, he has no custody rights and no visitation rights, but must pay child support. You are worrying about a non-existent case. There is no way to answer a case that does not yet exist.
    Answer Applies to: Georgia
    Replied: 8/4/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    You cannot file for custody without serving the other party with the action. However, if the parents are not married, the mother is the presumptive custodial parent unless or until a court establishes custody and parenting time by court order. In making custody and parenting time decisions, the court applies a "best interests of the child" standard.
    Answer Applies to: Minnesota
    Replied: 8/4/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    There are a number of factors that the court is supposed to consider in formulating a parenting plan. . Some of those factors include: Has there been domestic violence. Has there been sex abuse. Has there been child abuse. Does either parent have a problem with alcohol. Is there drug abuse in the case. The relative strength, nature, and stability of the child's relationship with each parent. Whether a parent has taken a greater responsibility for performing the parenting functions relating to the daily needs of the child. Whether there are any agreements between the parties. Each parent's past and potential for future performance of parenting functions. The emotional needs and developmental level of the child. Each parent's employment schedule. So, there are a number of factors to consider. How you and your boyfriend fit into these factors will determine who ends up being the primary residential parent. Please note that none of these factors are about how long you have been at your job. Also, the issue of whether you have a one bedroom home or a two bedroom home also doesn't really apply in this case. You said that your son is 8 months old. In that case, the court is not likely to require that your son have his own bedroom. That will change as he gets older, and he will probably need his own bedroom by the time he is in school. But not at 8 months old.
    Answer Applies to: Washington
    Replied: 8/4/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    If you move out with the baby, your BF can obtain a court order requiring the baby to be returned to his home until a custody determination is made. The court will order to child to remain in the residence he's lived in for the past 90 days until custody is decided. 1) In determining custody of a minor child, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors: (a) The emotional ties between the child and other family members; (b) The interest of the parties in and attitude toward the child; ( c) The desirability of continuing an existing relationship; (d) The abuse of one parent by the other; (e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and (f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
    Answer Applies to: Oregon
    Replied: 8/4/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    if you bring an action for custody he would be served with it and will have the opportunity to be heard. You do not need a 2 bedroom dwelling to obtain physical custody.
    Answer Applies to: Connecticut
    Replied: 8/4/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    In Florida, where a child predominately resides is based on what situation is in the child's best interest. As long as you can provide for your child, the child will, most likely, predominately live with you, although he may spend a substantial amount of time with the dad too. And if you were to move out right now, there is nothing that he can do to stop you from taking your child with you. You have custody by default until a judge establishes his paternity and paternal rights. He would have to file an action with the court and get an order determining what type of visitation and time sharing he has with the child. But no, you cannot get a custody order of any sort without him knowing, as he would have to be properly served and have a chance to respond to the action. If it appears that you may be separating from the dad, I would strongly suggest speaking with an experienced family law attorney who practice in the county where you reside prior to taking any actions.
    Answer Applies to: Florida
    Replied: 8/4/2011
    Law Office of Kathryn L. Hudson
    Law Office of Kathryn L. Hudson | Kathryn L. Hudson
    Your "boyfriend" is very mistaken. When parents are unmarried the custody is presumed to be with the mother. Unless he has filed a petition for paternity with the court his rights are very limited, and even with established paternity, barring you being declared outright unfit, he would not likely get custody. Only being on your job a short time is not relevant, nor is you having a two bedroom apartment. Being able to provide a secure home and child care while you are at work is what the court looks to, and of course he will be required to pay child support and possibly part of the child care and health care. He sounds like he is trying to bully you, arm yourself with knowledge and a good attorney.
    Answer Applies to: Arkansas
    Replied: 8/4/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    I am sorry to hear about your situation. Physical custody will *generally*be decided based on which parent has been the child's primary caretaker up to this point in his life. The fact that your boyfriend has a higher paying job, a two-bedroom apartment, and can cook, although somewhat relevant, is not as important as he thinks it is. The law will not punish a single parent for not having those assets/skills, since they do not necessarily make one parent "better" than the other. You can not file for custody without the other parent knowing - they must be served with a copy of the Complaint pursuant to the Massachusetts Rules of Procedure. However, it would be a very good idea to go ahead and establish your custody rights early on in the child's life so that you won't be plagued with uncertainty and tension for the next 18-23 years. You can find a family law attorney in your area to help you with the process. I hope this helps to answer your question.
    Answer Applies to: Massachusetts
    Replied: 8/4/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    It isn't possible to give definite answers to all your questions without a lot more information and time to discuss things face to face. You need to consult an attorney about the situation and what you need to do. Legally, at this point your "boyfriend" has absolutely no legal rights unless there has been a court case that confirmed that is legally the father and that established specific parenting responsibilities, including child support. So, you can ignore his "arguments" and consider that what he is telling you is simply an argument he might make if and when the issues are ready to be settled in court. That doesn't mean his "reasons" will result in him getting what he wants. Colorado does not use the term "custody" and, instead, contemplates the "allocation of parental responsibilities" in order to confirm that the best interests of a child is to have two, loving parents, involved in parenting - regardless of whether or not the parents live together. If you and he cannot develop a mutually acceptable Parenting Plan for the Court's approval, the Judge will establish a Parenting Plan based on his evaluation of all the relevant circumstance in order to decide what is best for the child. You can file the paternity case without his knowledge, but you will then have to notify him of the filing (i.e. have him served the Summons) because the Court won't do anything one-sided.
    Answer Applies to: Colorado
    Replied: 8/4/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    You already have custody. The law is explicit.: when a couple has a child and the couple is not married, until further orders of the court the mother is the residential and custodial parent. Believe it or not, dad has no rights to the child under the situation you described. And he will have no rights until he goes to court and a judge assigns them. Thus you can pack up the child a leave the abusive relationship you are in if you choose.
    Answer Applies to: Ohio
    Replied: 8/3/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend you retain a family law attorney as soon as possible to discuss all the facts pertaining to your rights and options, including child custody. While no one can predict what a judge will do, you should discuss with your attorney all the facts and witnesses who can support your claim that it would be in your child's best interests for you to have custody. Salary alone should not be the sole, determining factor. Again, hire a lawyer ASAP! Good luck!
    Answer Applies to: Georgia
    Replied: 8/3/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    The court will decide what is in the best interest of your child as it relates to child custody. The most likely outcome will be that you will share physical custody with the father. The fact you do not have a two bedroom apartment will likely not be controlling because your child is very young. Also the fact he makes more money than you will not be controlling as the court can order him to pay child support to you if the circumstances permit. Also, you cannot file for custody "without him knowing" as he must be served and have an opportunity to be heard in court.
    Answer Applies to: California
    Replied: 8/3/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    You should know that your economic condition is only one of many considerations of the court when it comes to deciding who will have primary custody. Custody factors include things like the love, affection and emotional ties between you and your child, the capacity and disposition of each party to give the child love, affection and spiritual guidance and to continue the education and rearing of the child, the capacity and disposition of each party to provide the child with food, clothing and material needs, etc. A willingness to facilitate and encourage a close and continuing relationship between the child and the other party is a very important. Your boyfriend should know that threatening the mother of his child with destitution in the case of a breakup will not endear him to any court, and that he should not take for granted the idea that he would be the parent with primary custody in this situation. It is also not a good way to stay a boyfriend, or earn the right to be married. Unmarried fathers have extra steps they must go through to prove fitness to sue for custody, whereas mothers are presumed to be competent to have physical custody of their children.
    Answer Applies to: Louisiana
    Replied: 8/3/2011
    William C. Gosnell, Attorney at Law
    William C. Gosnell, Attorney at Law | William C. Gosnell
    Joint or shared custody is preferred in Tennessee, I believe that the child could switch homes every week, every month or every three months. Unless one of you is unfit; alcohol drugs, mental illness.
    Answer Applies to: Tennessee
    Replied: 8/3/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    The court looks at what is in the best interest of the child when determining custody. Who can provide better for the child emotionally, physically, mentally, and financially are just a few factors. I encourage you to contact our office for a free consultation to discuss in more detail this best interest standard.
    Answer Applies to: Illinois
    Replied: 8/3/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    If you file, you have to let him know. The issues he mentions to you are not the only factors the court will consider. In your situation, it is not clear who the court will prefer.
    Answer Applies to: California
    Replied: 8/3/2011
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