How will false allegations and "tender years" affect my case
Question: My wife and I are divorcing after 3 years. We have a 13 month old son. We both are police officers for the same department. We live in the same town. I have custody of a 13 year old from a previous relationship. During my custody battle with my 13 year olds mother she made several police reports and reports to D.C.F.S. alleging child abuse and domestic violence. DCFS cleared me and no charges were ever filed by the states attorneys office. I won custody. Since that time a past girlfriend had made police reports alleging domestic violence. Again no complaints were signed and my department cleared me of the charges. Regardless of these claims I have never abused anyone, adult or child. However my wife is now collecting all of these reports and attempting to make a case against me as an abusive person. She has also gotten an order of protection against me. In the order she stated I never hit her, nor have I ever threatened to hit her, but she was in fear of receiving battery. The order was allowed to expire without prejudice.
I currently see my son from Sunday at 3pm to Wed at 4 pm. I like this arrangement. It has been in place for the past 2 months. However my wife has filed a motion to change this agreement, stating it is not in the best interest of the baby due to his tender years. I'm hoping to get a 50/50 arrangement until the baby starts school. Then revisit the situation. What is your opinion on this situation in regards to the past allegations and the change in visitation and the 50/50 visitation? By the way I'm the one seeking the divorce.
Answer: I think that the fact that you won custody previously is the best answer to the charges, along with the fact that they were completely unsubstantiated. Make sure that if these items come into evidence that you are prepared to show that nothing ever came of them and there was no hard evidence. Judges are not stupid; they can see what is in front of them but it's up to you to put it there. As far as the custody arrangement, a good argument is to emphasis the status quo as much as you can.
The problem with your wife's argument about "tender years" is that there is no presumption under any state's law that a woman gets custody over a man due to "tender years" (in fact that is unconstitutional.) It IS allowable for the court to give primary custody to either parent due to "tender years" as long as no preference is granted to either sex. Of course, that is the theory, and in practice judges will frequently give custody to the mom without actually saying why they are doing it.
Therefore, I would emphasise to the court that a bare allegation of "best interest" does not defeat the fact that the actual arrangement of almost 50-50 has not harmed the child, that you are just as capable if not more so of taking care of the child than Mom, and the arrangement has allowed both of you to maintain a relationship with each other that will be lost if Mom gets what she wants. Keeping that relationship is usually an important goal of state custody rulings. Judges have a tendency to stick with the status quo, but it is up to you to show the court that the current arrangement works well and should be kept.
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