Can I Get Custody Back?

Updated on March 14, 2007
L.W. asks from Cortland, NY
10 answers

My ex-husband and I divorced 2 years ago. I lost custody of my son at that time, only because I left the house and moved out and I was working a midnight shift at the time. I fought for custody in court and didn't win. I have to pay child support and only see my son every other weekend and a few weeks in the summer. I have been wanting to go back and fight for custody, I just haven't had the money to do so. My ex-husband is a very egotistical, narscisitic, mentally and emotionally abusive man. This is why I left him but he still treats me the same. In fact, it was my birthday last week and he didn't even tell my 5 year old, so he didn't wish me a happy birthday or anything. He also hasn't been letting my son call me back when I call to talk to him. Anyway, recently I've gotten a little help from family who may be willing to help out with some legal costs to take him back to court and fight for custody. I am remarried now to the best man in the world! We have a 7 month old son together and are stable now where we are living. I'm just wondering if this is going to be possible. I hear horror stories about as long as the other parent isn't unfit, there's no way for me to get custody back. It kills me not to have him all the time and kills me more to have to deal with my ex-husband on every issue. (he told me I'm not allowed to cut my sons hair when I have him, or take him to church.)

Anyway, if anyone has any advice, please let me know. I have had a very hard time the past few years without my son. Especially since my ex decided a year and a half ago that he was moving to NY and taking my son. Though I took him to court over this, he got his way and I had to take him new husband at the time away from his entire family and move us 3500 miles to be close to my son. It's a never ending battle and I don't want to have to deal with that jerk for the next 13 years!

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answers from New York on

You have to talk to a really good lawyer that specializes in custody issues. You probably won't get full custody but if you have a good lawyer you can probably get joint.

Good luck!

Jenn Smith

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answers from Rochester on

I don't know the answer to that. What I do know is you will regret it if you don't try. Your son has to know that you tried to get him back. And if this guy is that big of a jerk then you have to try. You have to know that you are doing everything you can for your son or you will feel like you are not a good mother. as mothers there is nothing we won't do for our kids...right! I say go for it.



answers from New York on

Honestly, I can't see why you wouldn't get custody back! If you can proove that your current home life is stable then most judges will grant you custody back. Its a long battle though, just so you know. Good luck...I've been in your shoes so I know what you are going through.




answers from New York on

It is possible to get your son back. The biggest thing you need to do is keep a diary. In this diary write every time you call him, how long you got to talk to your son, if at all, if you didnt get to talk to your son, write down the reason given to you by even your son or your ex. If your son calls you crying write it down, if he tells you taht he wanted to call you yeasterday but daddy wouldnt let him, write it down. The big things like your birthday and this will be big in the courts eyes due to the court trying to include both parents at all times. I would wait till your 8 month old is atleast a year before filling, most courts would say you have enough on your hands with a child less then a year old. The biggest thing is your son will be 6 soon and the court usually asks the child who would he like to live with. They usually start asking them this question at age 5. Futhermore, if your exhusband was abusive to you or/and your son, bring it up in court. I know you may not like it but to win your son back, you are going to have to fight dirty. You throw EVERYTHING at him possible. If you need any questions asked, I am a paralegal at a family law practice. I can ask some of the attorneys here for advice but I know that this is what you need to do. Good luck.



answers from Jamestown on

Dear Can I get Custody Back,

I feel sympothy for you for the position you are in. I would get a consultation with a new attorney and see what he/she tell you. I have custody of my 14 year old daughter and in my custody papers it states that there is no interference with the growth and development of the child. When the child is with me or my ex-husband. There is no reason you cant get your sons hair cut or take him to church. I would start to keep a journal of everything. What he tells you or tells your son, etc. If you can get your conversations on tape, do it. I cant imagine not having my child with me, she is my world. I hope this helps, and good luck. Stay strong, your son will need you to be a strong person....



answers from Binghamton on

I would ask the court to do a home study on the environment that your ex has created for your child-if he is like you say and you can have a court appointed case worker say that you might have a chance. The other thing is that depending on what county you live in will determine the chances of getting him back. In broome I have heared that mom always wins if hes in the city its very up in the air.

Get a good lawyer and RECORD ANY CONVERSATION YOU HAVE WITH THE EX!!! just when he starts to get manipulative keep your cool and use it in court if you can get him being an a$$ on the phone give it to a judge to listen to and if he (ex) gets abusive toward you that may work to your advantage.

I really hope this helps and that you get your son back,



answers from Buffalo on

I'm sorry to hear you're having such a hard time, I know it's not easy to not see your child as often as you'd like - i see my husband deal with it all the time with my 8 year old step-daughter. I don't know tons about the law as far as getting custody back, my husband has joint custody of his daughter and he has her every other weekend during school and every other full week in summers and splits holidays and school breaks. He's never attempted full custody. I'd imagine it would be virtually impossible at this point to get full custody from your ex, but i'm sure you could file for a modification to visitation so you could see your son much more. It sounds like in your situation it would be a great idea. It's what my husband ended up having to do because his ex was playing games and being very difficult to reason with and not giving him his fair visitation (sounds like you can relate - I'm surprised they let him move so far away!). The best thing we did was keep a journal of everything that happened. And if you can, get something to record phone conversations (you can get them at Radio Shack for maybe about $70 or so). And i strongly agree with the previous post about court ordered counseling or at least special court ordered parenting classes - they offer them for split families and you don't even have to take it together, it just helps each parent learn to deal with the type of situation. If you decide to pursue the courts and need any help I may be able to give you some pointers - we had a great lawyer that helped us a lot.

And as for not wanting to deal with the jerk for 13 more years, unfortunately I'm certain that as long as your are in your son's life, your ex will be in your life - unless by some crazy situation your ex does something so horrible that the courts actually allowed you full custody and took even his visitation away. So unfortunately it's something usually you just to have to accept and deal with for your son's sake. I often have to remind my husband that his ex is not going anywhere, and that he needs to think about his reactions to her for his daughter's sake. She loves them both so much. My husband's ex used to be (and still is many times) so difficult to deal with, but my husband has come to realize that even though his ex is not always good to him, she's overall been good to their daughter and that's an important thing. Your son needs his father. It sounds like he's grown to love his dad, and even though you have a new man in your son's life, his father is irreplacable.
My step-daughter has become so much happier and more comfortable with life in general since her parents have made the decision (with a little push from the courts) to get along better. Hope it all works out for you and your family!



answers from New York on


If you can prove to the courts that whatever conditions existed at the time of the custody decision have changed, you may be able to get joint custody of your son along with your ex-husband. Unless you can prove that the environment your son has been living in up to this point is damaging to him somehow, the likelihood of the judge taking him away from his father completely is really slim. The "horror stories" you hear are pretty true. If you can't prove that your ex is abusive, a criminal, a drug abuser, or a pedophile, and he's had custody all along, they're not going to just take his little boy away.

Think about it this way: If you had had custody all along, and your ex decided to fight you all over again, wouldn't you want the courts to have a REALLY big reason to just take your son away and give him to his father? The odds are, joint is the best you are going to do at this point. Not thatthat should stop you, if you can show that things have changed, then why SHOULDN'T you have your son half the time? Isn't that better than what you've got now? I know you don't want to have to deal with the ex, but unfortunately, that's probably not going to happen.



answers from New York on

Hi L.,
I am so sorry to hear about all of these troubles. It is shocking to me that the court let your ex husband move away. Most family courts now are leaning towards joint custody, where both parents are equally involved in the child's life. It sounds like you are looking for physical custody, where the child lives with you and visits his father. Do the two of you live close enough where you can split weeks? Where your son would be with you one week and your exhusband the next? Or two weeks with you and two weeks with your ex-husband? I don't know if where you all live will warrant a situation like that, but at least then you would have equal time with your son. I would also suggest court ordered counseling for both of you. As you mentioned, you have 13 more years to deal with this man, and he can not continue to make all of these demands of you. It doesn't sound like he is doing this because it is in the best interest of your son, he sounds like he is doing it because it is in his best interest, and that is not what being a parent is about. I hope this helps somewhat.
Good luck!!



answers from Albany on

You have to show an improvement in your circumstances in order to even get more visitation. Maybe that should be your first step. It is called a modification of visitation, or even go for joint custody. You are probably not going to get full time custody. This man has been the only full time care giver for your son for the past few years, and taking him away from that completely, isn't fair to him, unless he is in harms way of course. You are in a stable relationship now, you moved to be closer to your son, your probably more financially stable. Those are just a few circumstances that you could use. There has to be something else in order to make the court take a child away from his mother like that. If there was any addiction problems, voluntarily go to a treatment center. But if you just abandoned him (that is how the courts see it) then you need to explain why you left, but again, if you were being emotionally abused, and left your son in that environment, the court may not like that. Not being rude, just being the devils advocate here. I am going through visitation battles with my ex, but he is a drunk, so the court has been tough on him.. I am just telling you what I have learned through my battles...

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