Father's World

Joseph Cordell,J.D.

Past Questions

Current Questions and Answers

NOTE: Information contained in this site is intended to help fathers who are involved in the divorce process. It should not, however, be construed as legal advice. For personal legal advice, please consult your attorney.

Q: My wife screams at me and the kids all the time (sometimes for no reasons), and it is driving me crazy. She acts like a very nice person in front of others which makes me difficult to prove she is insane. I cannot even talk to her. It is come to the point that I need to stay away from her or I will become very stressful which is causing my health deterioration. However, I have two kids around 7 and 8 years old, and I want the custody or nothing. Is there a way to get rid of her?
Asked by Charlie in Maryland

A: Unfortunately, there is no easy solution. This is a situation where more can be gained by careful planning than by flying off the handle at how she treats you. If you want custody you need to lay the groundwork properly, which means parenting the children in such a manner that you have hope of convincing the judge that you, rather than she, should be chosen as the primary parent. I would, however, caution you: the tone of your letter suggests to me that you may be more interested in addressing the conflict with your wife than in parenting. Remember that your children are an issue separate from your wife in many ways, at least in terms of your being a father to them. You need to approach the situation with that in mind if you want to achieve primary custody. Our book, "Civil War, a Dad's Guide to Custody" may be very helpful to you in describing ways to lay the groundwork for a custody battle.

Q: I have two questions: What does it mean to cross file? You say that eavesdropping is illegal but if you do it, how can it be used against you? I just want to listen to her side of the conversation so that I will know when I should have the P.I. follow her. She denies having an affair but I know that she is. I want custody of our child and I feel I need to know the truth.
Steve in Georgia

A: Cross filing (more properly called counter-filing) means that the defendant in a lawsuit (that is, the party against whom the initial action was filed, sometimes called "Respondent" in domestic relations matters) files a petition of his/her own against the plaintiff (sometimes called the "Petitioner"). The petition filed by the defendant is called a counter-petition. Sometimes domestic relations attorneys call this a cross-petition, but that is technically inaccurate. A cross-petition is more accurately described as a petition filed by one defendant against another defendent, or one plaintiff against another plaintiff; that is, a new petition filed by one party against another party on the SAME SIDE of an existing lawsuit. A counter-petition is a petition filed against a party on the OPPOSING SIDE of an existing lawsuit. The distinction is fairly unimportant in domestic cases, but it never hurts to get the terminology correct. The reason you would want to counter-file is twofold: first, because you generally have to have your own petition before the court before you can ask for specific relief that is different from what the other side wants (for instance, if you want an award of attorney fees from her), and second, because if she were to dismiss her petition, and you did not have a counter-petition in place, the entire lawsuit might go away under some state's laws, leaving you unable to get any relief from the court at all without starting a whole new lawsuit up.

As for your second question, wiretapping in the manner you describe is illegal and a criminal offense under both federal and state law. If she finds out about it and convinces a federal or state prosecutor to charge you, it is possible you could go to jail or be fined. Have you considered serving a subpoena on the phone company and getting a record of all outgoing calls from your phone? That could reveal to whom she is placing calls. I should also point out that under federal law there is some case law supporting a marital exception to the wiretapping laws such that under certain circumstances you can arguably listen in to your spouse's and children's conversations, but this is iffy and I certainly would not rely on it, especially since state law may well not allow the same exception, and even under federal law I'm not sure it is still recognized. I have not researched that issue lately.

Q: My wife went to another state for her uncle's funeral where she stayed for one week. Upon returning, she informed me that she wanted to move to that state. To make a long story short, she left me, our son, and her job the next day a went back to the other state - leaving me with less than 8 hours to find a sitter for our son. I later learned from her mom that she was seeing someone out there. When she left us the way she did, did she also leave her rights to our home and son?
Eddie in Alabama

A: I can't tell you anything specific about Alabama law, but in general your state will still retain jurisdiction to decide both the divorce and the custody issues. She still has rights as a parent to both the property and the child, but the court will decide who gets what. Certainly her leaving like that will severely damage her changes for getting custody,should she decide to try for it, and in some states could be considered marital misconduct that could be considered in the division of property.

Q: I had to take my ex-wife back to court this year because she was refusing to let me see my two daughters. On March 1st, 2001 she and I signed the visitation agreement that was filed with the court. It states that I am to have the girls for one month during their summer vacation and now that summer is here she's saying I can only have them for one week at a time and that if I don't do it her way than I won't see them until we go back to mediation. Can she do this? I just spent $1300 to get this settled and now three months later she's changed her mind. I can't afford to keep doing this!
Asked by Marc in Sun City, California

A: If the agreement says one month, with no further limitations, then that seems unambiguous to me. She sounds like she is violating the agreement. I would think you should consider taking her back again on a contempt motion, or a motion to enforce the custody order. Remember that is is likely under your state's laws that you can ask that she pay your attorney fees for such a motion, and if her conduct is that obviously in violation, you might get that. It would be very helpful if you have her threat not to let you see the children at all in writing. That would pretty much prove it to the court. Another possibility is that you take the children for the period she claims you can, and simply refuse to return them. But that kind of confrontation is not good for the children (as well as possibly being difficult to enforce because the police may get involved) and I think a court action is probably more appropriate.

Q: My Wife wants to Bifurcate the divorce proceedings? What is the advantage or disadvantage of this?
Asked by Mark in California

A: Bifercation means that the court decides the different portions of the lawsuit separately (such as the divorce itself, custody issues, and property issues). It can sometimes get uncontested issues out of the way quickly, (such as, say, dividing up the property) while leaving difficult issues for resolution upon presentation of appropriate evidence (such as custody). My state, Missouri, does not do this, so it's a bit hard for me to comment, but my general feeling is that matters in a divorce are so tied together and interdependent on one another that I personally would not think I'd want to do it.

Q: My wife and I split up about a month ago. We have a son which she will not let me see unless I am with her. We are not legally seperated or divorced. What can I do to see my son?
Tom Lee in Anchorage, Alaska

A: Unless Alaska has some specific procedure to deal with this, the common law remedy (assuming you don't want to file for a legal separation or a divorce) is called a writ of habeous corpus. This is an action filed with the court, where you ask the court for a court order requiring someone who is improperly holding custody of someone else to produce that person. The application to the situation you describe should be obvious. However, I do not know Alaska law so I don't know if Alaska uses this procedure or some other, statutory procedure. I do know that in my state, Missouri, habeous corpus can be used as I describe. You should talk to an Alaska attorney about the appropriate court action to file to get a custody order of some sort.

Q: Hello my fiancé and I live in Washington and we are in the process of moving to Colorado in May. He is in the military and December of 1999 his ex wife moved out of the state to move back to Florida. At the time she said she moved because she felt her life was threatened by her boyfriend. Later she e-mailed me saying she moved to Florida for family support and that it was important that their son be around family. His father is his family. Now he gets out of the army in May and she found a new guy and is moving out of Florida to North Carolina but they may move again. In the parenting plan it states that if its geographically capable that the father pays for travel expenses. Now is that geographically capable? To me that is impossible. She won't even meet us half way. And also once we move to Colorado, can we modify it and change the parenting plan?
Asked by Jennifer

A: What does "geographically capable" mean? That doesn't even make any sense to me. Do you have any idea what the court meant by this phrase? In any event, as a general matter the situation you describe, especially the ex's frequent moves, should support a motion to modify the parenting plan. If the child has lived in Florida for greater than 6 months, and she hasn't gone to N.C. and lived there with the child for 6 months, then it's likely that Florida currently has jurisdiction over the modification (as the child's "home state"). But consult an attorney to determine which state currently has jurisdiction and your chances of success.

— TOP —

Joseph Cordell, J.D. founded Cordell & Cordell in 1990 after a brief stint with a major law firm. Originally a general practice firm focusing its attention on domestic relations matters, Cordell & Cordell has evolved into a firm practicing exclusively domestic relations law, with an overwhelming emphasis on fathers' rights. For more information you can visit http://www.dadsdivorce.com/ or if you have a question that you would like answered http://www.dadsdivorce.com/phorum/list.php?f=16&collapse=0

Suggestions? Feedback? We'd love to hear from you.

Say Hi! to Winston
Winston If you or your children would like to write a note to Winston, I'm sure he would love the mail.Winston@fathersworld.com