Is it Possible to Get Full Custody of a Child?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Sydney Mitchell:
Talking about child custody, the word custody, which I know that we’ve talked a little bit about how that looks a little bit different now, but the question is, is it possible to gain full custody of a child when you are unmarried to the mother? If you feel you’re the better. Yeah.

Matthew Brickman:
Okay. So this obviously came from a man. Um, well, possibly it could be a female and they’re just not the biological mother. I’ve, I’ve had that as well. Um, so you know what, let me address them. Let me address first. If it’s, if it’s a male, if it’s a male, if you feel as though you’re the better parent, but you’re not married. This goes under the laws in your particular state, on paternity in Florida. Um, there is a legal presumption that the mother is the mother because she gave birth to a child. So yeah, you’re the mother because the child came out of you. Okay, great. There’s no legal presumption. A dad is dad until either paternity has been established by test. Paternity has been established by the courts or paternity has been established by agreement to the parties. And mother says, yes, I’ve only been with him and that is his child, right? Until that happens, the mother has full quote, unquote custody or time sharing and full decision-making because she’s the only adjudicated parent. Um, even if you feel as though you’re the better parent, well, that’s subjective better. In what sense? You, you know, you know, she doesn’t feed the children at the particular time. You like, or the food you like,

Sydney Mitchell:
Is that like an ethical consideration or a financial one? Am I better? Because I made more money.

Matthew Brickman:
Like, like, like, like what determines the better parent, I don’t know, but from a legal standpoint, whether you feel as though you’re the better parent and you may be the better parent, like on, I mean, you may make more money. You may be a gentle spirit. You may go to church every week. You may be a good human being. You may, you know, volunteer at animal shelters. Like, I don’t know, like you may be a good human being and the mother is a junkie. Well, guess what? She still has full custody of that child until it’s been adjudicated. Otherwise, even if you think you’re the better parent. Um, and, and, and I’ve seen it too. And I had a same-sex divorce where you had the biological mother and then you had the adoptive mother. And actually the adoptive mother was a better mother. I mean, I did their divorce.

Matthew Brickman:
She was a better human being and a better mother, but you know what, she was not the biological mother. And so even there, it was a battle of, and decision-making, uh, between the two women. And so just because you think you’re better, no. Um, and look, I’ve had it where, you know, to, to people that are married, you know, I know this was your you’re unmarried, but I’ve, I had a divorce where dad was actually in jail. He was in jail, appearing by phone for his divorce. So I was sitting in the law firm with his attorney, mom and mom’s attorney and dad was appearing in jail and we call and, you know, I mean, I said like, okay, where’s dad. They’re like, Oh, he’s in jail. I’m like, Oh, okay, well, this is, this is going to be easy. Right? Well, they had gone to a temporary relief hearing.

Matthew Brickman:
So they had already done one mediation. They didn’t agree. So they went to a, a temporary relief hearing and the judge ordered them back to mediation to create a 50, 50 timesharing schedule. I had sat there going, why he’s in jail? And they’re like, well, he gets out in a month and mom is just crying. She’s just like, she’s crying. And I’m like, okay. So clearly I’m looking at this from a moral standpoint, with limited knowledge going, who’s the better parent. Well, dad’s in jail and mom is not, mom’s probably the better parent, right? The judge ordered 50, 50 timesharing didn’t care if dad was in jail and mom was not in who morally could or could not be, or, or labeled, uh, the better parent simply now it was non felony drug, non felony, domestic violence, non felony, sexual assault. Therefore, apparently he was a good human being just made some bad choices, but he’s going to be out.

Matthew Brickman:
And the judge to make that jurisdiction. Then, um, generally if it’s non domestic violence, felony, domestic violence, drug, or sexual assault, you know what, that may not be the, you know, so, so the, I guess, I guess the best way I can put this is there is a reason why lady justice, who’s standing there blindfolded holding the scales of justice is blindfolded. Morality does not come into play. Skin color does not come into play. Sexuality does not come into play. They’re looking at, they’re looking at it from a legal standpoint, which sorta kind of is good in a lot of ways, because a lot of buys, a lot of the prejudices that we as human beings have that we try to throw into the mix to start to try to gain more control than the other human being. They don’t come into play. We’re looking at best interest of the child or going back to our conversations on retirement or business or alimony.

Matthew Brickman:
It’s purely data, marriage data filing was a marital dissipation in ways. No. Okay. 50 50 done. So, I mean, just because you’re the better parent and whose eyes, you know? Um, and, and so, yeah, I mean, even without married, couple, the judge was like, Nope, 50 50. So yeah. I mean, is it possible to gain full custody when you’re unmarried to the mother, if you feel like the better parent full custody I haven’t seen, I mean, even in, we don’t use the terms custody more, but even sharing. Um, the only time you ever get full, maybe if it’s out of state and even there, it’s not full, it’s still an 80 20, like, uh, you know, um, and custody, custody, you know, being that this person is using the term custody. They probably live in a state that still has that term. And custody probably means majority time sharing and decision making.

Matthew Brickman:
Uh, most likely because in Florida, that’s what it used to mean is custody was timesharing majority and decision-making, and to have that taken from a mother, given to a father, if you feel as though you’re the better parent, just because you feel it, no, you’re going to have to prove that they are a danger to the child. Like they were drinking and driving with the child in the car, got into a car accident, pretty serious. It’s gotta be pretty serious. Um, you know, to, you know, to have that custody taken from, um, a parent. Um, I even had one, I had a mediation recently where the mother was in and out of drug rehab over the past five years and dad had the child and mom’s wanting to be part of the child’s life, you know? Um, she’s, she she’s claiming that she’s been clean and sober for a year.

Matthew Brickman:
And so we talked about building in all of the, uh, and, and, and, and, and, and these, these people were never married. Right? So in this particular one, like this question, you know, is it possible for him to get the custody? Yes, because she gave it to him. She gave it to him. She had a drinking problem in and out of rehab for five years. But, and, and so he, you know, at one point she thought he was the better parent. He thought he was the better parent, but now she’s coming back into the child’s life, clean and sober. And so the only way that he’s even considering giving up some of that power and control is okay, we need to start off, you know, prove to me that you’re going to AA P you know, they wanted a sober link. I don’t know if you’re familiar with Soberlink.

Matthew Brickman:
So Soberlink is a portable device that you, that has facial recognition that you blow into that will monitor whether you’re drinking or not. And they’ve got different plans, they’ve got two different plans, and then they’ve got different monthly pricing plans. So like, they’ve got one that just is a 24 hour monitoring, not allowed to drink any time, but then they have one that is set up for your time sharing. So it only monitors during your actual designated time sharing. And then they’ve got different monthly plans for whether it’s, you know, a daily email or whether it’s in real time. Um, and so, um, and then they’ve got two different devices, one that has built-in cellular one that connects Bluetooth through your cell phone, but these are devices that, that, like this guy had requested saying, Hey, look in order for you to come back and start having, you know, be integrated. I need to know that you’re clean and sober. I know that you’ve had a problem. You actually gave me the custody or gave me the decision-making and you’ve been Mia. You’ve got to start to jump through hoops. And so we built in the parameters and stuff for her to earn it. Um, because in that particular situation, he actually did get it, but not because of court gave it to him was because the mother gave it to them.

Sydney Mitchell:
Right. Right. Well, man, this is, this insight is so helpful because, I mean, again, like we’ve talked about, every situation is so unique and there are so many, you know, unforeseen circumstances.

Matthew Brickman:
Yeah. The variables are all over the place, which is, which is the good and the bad of family court, because some people get frustrated with the family court. Cause they’re like, why is it not just cut and dry black and white? Why or why, why is it so many gray areas? Why does the court, or why do the judges have so much judicial discretion? Well, this is why, because you might actually want it. You know, it is case by case family to family. And what the court can do is they can look at your religious beliefs. They can look at your cultural beliefs. They can look at the, the morality if need be. Now, like I said, lady justice is blindfolded, but there are some times where the, you know, the judge is not the courts. You know, the court is, the judge is not. And yeah, for, you know, for this mom to walk in after five years of being in and out of rehab and, and, and issues for a judge to just say, Oh yeah, you can have 50, 50 time sharing. Most judges do not want blood on their hands like that. So they’ll say, look, you know what? Yeah, we’re going to do a step up re reintegrated timesharing plan because what they are looking at all the time with, with custody and timesharing is they’re looking at best interest of the child. Right. You know? Um,

Sydney Mitchell:
And that’s really what matters at the end of the day.

Matthew Brickman:
Yeah, we will. And you know that we have a child of divorce. I mean, everything is best interest of the child. Not so much. What mom wants her dad wants, but what’s in the best interest of the child.

Sydney Mitchell:
Right. It’s really, really good.

Sydney Mitchell:
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