The typical scenario goes something
like this: mom surrenders the child to dad in order to give her time to “get on
her feet” financially, or find a permanent place to live in a new city. Mom has
a rocky parenting relationship with dad but, based on dad’s promises to help
out, mom lets the child go with dad on what she believes is a temporary basis.
Mom even puts the arrangement in writing and dad is more than happy to sign.
Days turn to months and
before mom can bat an eye, dad has maintained physical possession of the child
for a period of longer than six months.
What mom doesn’t know is that
she has inadvertently armed dad with the ability to mount a compelling case for
change of custody.
Mom then gets served with
papers seeking to modify the custody arrangement to render dad the parent with
the exclusive right to determine the primary residence of the child on a
permanent basis. In other words, dad wants to have “primary” custody of the
child such that the child would live with him and go to school from his
address. And one other thing, dad is also seeking child support from mom.
Mom now has a serious problem
on her hands and, with the threat of losing custody of her child, she will
almost certainly need a good lawyer. What will make this legal battle difficult
for mom is the fact that the Texas Family Code provides that dad can go into court
three days after serving mom the papers and seek a ruling that allows him to
keep the child while his modification suit is pending. This gives dad
substantial leverage and may very well provide him the upper hand when the Court
makes its final decision about where the child lives going forward.
Dad will invariably allege that
mom abandoned the child to him and the Court may presume this to be the case,
given evidence of the voluntarily relinquishment. Ironically, this evidence may
come in the form of the agreement that mom asked dad to sign with best of
intentions. Mom is now forced to overcome these allegations in order to save
custody of her child. The only way out of this jam for mom is to convince the Court
that, despite her temporary relinquishment and the harsh allegations from dad,
it remains in the child’s best interest for the child to resume living
primarily with mom. Mom has placed a heavier burden of proof on herself than
necessary. She will now have to look for witnesses who can testify about her
parenting skills and or dad’s lack thereof. And, what’s more, she may even have
to disprove any lies told by dad to enhance his leverage in his case.
While this is a tricky
situation, with the right approach, mom’s case is not un-winnable. But, the
headache and the risk of losing her child is certainly something she can do
without. So, the best advice I can give mom is to simply avoid this type of
situation altogether.
It’s been my experience that
parents who roll with the punches while keeping their children by their side tend
to make it through trying times and come out better for it. Barring a true
crisis or emergency, always keep your child with you. You will likely find that
your child is able to weather the storm right along with you and you can avoid
the hassle and expense of unnecessary heartache and litigation.
