How to I go about obtaining 50/50 custody?

UPDATED: Jun 14, 2011

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How to I go about obtaining 50/50 custody?

My daughter, who is 3, lives with her mother in a town about a hour away from me. We were never married. After she was 2 I was finally able to see her because I filed visitation with the courts, but her mother would not allow me to see her. In the last year I have filed 4 contempt of courts against her for not showing up every other weekend. It’s a fight to see my daughter; her mother either doesn’t show up or shows up late and doesn’t call to say she’s running behind schedule. I have at least a dozen saved voicemails of her calling to argue over everything. What are my chances of getting 50/50 custody?

Asked on June 14, 2011 under Family Law, Florida


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Custody and visitation are separate issues.  There are two types of custody; physical custody and legal custody.  Physical custody refers to the parent with whom the child is living.  Since your daughter is only 3 and is accustomed to living with her mother, it is unlikely that the court would remove her from that home and grant you physical custody. 

Legal custody means making decisions about your daughter's education, health care, etc.  The court could grant you sole legal custody or more likely joint legal custody where you and the mother would make decisions together about your daughter's education, etc.

You have a right to visitation.  If the mother is violating court orders, she could be subject to civil or criminal penalties.

Although it is not possible to predict a court's decision, you have strong arguments for visitation and joint legal custody.

You can seek a modification of custody and a modification of visitation by filing an Order to Show Cause (OSC) court form with an attached declaration signed under penalty of perjury stating the facts supporting your request for a modification of custody and/or visitation.  When you file the Order to Show Cause with the court, the court will set a date for a hearing on these issues.  File the OSC and your declaration with an attached proof of service.  You can use a court form proof of service or you can write your own.  The proof of service confirms the date of mailing the attached documents to the mother of your child.  If you write your own proof of service, it would just say that you are over 18 and the attached documents were sent via first class mail unless specified otherwise to _________ (name and address of the mother) on __________ (date).  You sign and date the proof of service at the bottom under penalty of perjury.  The date you sign should be the same date as the date of mailing and the same date you file these documents with the court.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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