If my husband has been convicted of several felonies and is on parole, do I have a good chance of getting sole custody?

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If my husband has been convicted of several felonies and is on parole, do I have a good chance of getting sole custody?

He has 2 class 4 felonies DUI and has been in and out of prison most his life. Our son is 3 and was born while he was in this last time. He hasn’t spent any time with my son since we split up and doesn’t even call to talk to him. However when I told him I filed for sole custody he said he was gonna fight me tooth andnail. I’m worried for my son. It has also been determined that he suffers from mental illness.

Asked on November 25, 2011 under Family Law, Arizona

Answers:

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

Answered 9 years ago | Contributor

There are two types of custody which are physical custody and legal custody.  Physical custody is where the child is living.  Since your son lives with you and is accustomed to living with you, the court is NOT going to remove your son from your household.  The court determines custody based on the best interests of the child.  It would NOT be in your son's best interests to be removed from your home where he is accustomed to living and placed with his father given the father's criminal record.

Legal custody means making decisions about your son's health care, education, etc.   It is not possible to predict the outcome of a particular case, but again considering the best interests of your son, it is possible that the court might grant joint legal custody which would mean both parents would be making decisions about your son's health care, education, etc.  Again that may not happen and you might be granted sole legal custody as well as sole physical custody.  Given the father's criminal record, it is unlikely that he would be granted sole legal custody.

Custody and visitation are separate issues and the father does have the right of visitation.  If you and the father can't agree on a visitation schedule, the court can set up a schedule.  At this point, it does not appear that the father is interested in visitation since you said that he doesn't even contact your son. 

If you are dissatisfied with the court's decision on these issues, you can seek a modification of the court's decision based on changed circumstances or other factors.


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