Custody battle. Help!

Brandi Lynn - posted on 08/21/2013 ( 56 moms have responded )

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My ex husband and I are going through a custody battle with our two sons one who's 2, and the other now 8 months. He was abusive and he has never really been there for the boys. He is now trying to fight me for half custody. I have a new man in my life and have for the last 10 months. My 2 year old hasn't known his dad much and has treated this new guy as if he were his dad. My 8 month old only knows this man. Anyways, I made a little mistake when my ex husband got his hands on a video of me & my new guy doing a sexual act. (Not sex) in the video you heard my 5 month old at the time cough in his sleep. (His crib is next to my bed) my ex is saying he will win full custody because I have done a sexual act in front of my 5 month old. Is this true? He was so little & sleeping! I don't see how that makes a big deal. Any advice? Thanks.

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Rebecca - posted on 08/21/2013

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Judges don't take kids away from their mothers as a rule. Unless you are endangering your children they won't care. It takes a lot for a judge to deem a mother a bad fit. If he works in the military he has no leg to stand on. He's on call to leave the country at any give moment but if your not a bad mom you don't have anything to worry about

Ev - posted on 08/25/2013

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I have to agree with Jodi, Krissy. What you experienced in your life does give you reason to give advice but to lie? And just a note for you on the comment that the parent the kids live with the most will get the primary custody in a joint custody case is wrong. I had to make a choice of continued fighting in court for custody or take the joint custody and let the kids live with him for the following reasons: I had no money to fight him in court after this one time, I did not want to put my kids through more than what they had been, I also wanted them to have stability as well....being with one parent as primary rather than back and forth in court every 6 months...., And lastly, I did not want to loose what I did have with them by putting them through a lot of custody battles. So back to who gets primary custody in joint custody: IT GOES EITHER WAY. And I am quoting my lawyer at the time, "Judges do not go with the mom totally anymore. There are cases even now (2002) that the judges have given primary joint custody to or even full custody. Its not all about the mom anymore." So, just a note on the advice, tell the truth, speak properly to the judge, have the evidence or proof of what you need for court, and pray. When the final decision comes down, follow the court order to a T or else you will find yourself in court again for not doing so. Also, when you get the final say in the matter, try for the sake of the kids to be on good speaking terms with dad to do their discipline and such the same at both homes. Also keep each other abreast of anything going on that is needed to be known so that the other parent is in the dark (I was kept in the dark on a lot of major choices made without me by my ex). Discuss the kids politely and do not use them as pawns. That is my advice.

Jodi - posted on 08/23/2013

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Krissy, I am merely pointing out that the judge would be able to tell if it was the difference between a cough of a child in the same room and a cough on a TV (and it is the only sound from any imaginary TV). IF she chooses to lie about it, then the judge may view her as an unreliable source. The judge will know she is lying....Especially if there is no evidence of a TV being on and TV noise in the video. As I said, judges aren't stupid. They are used to the games people play. You are suggesting she play a game that is dishonest, and it is highly likely to backfire on her.

Jodi - posted on 08/23/2013

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Except this isn't stretching the truth, it is an outright lie, and it might mean you lose your kids. You are giving advice to a lady that might result in her losing her children.

Jodi - posted on 08/23/2013

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Um, if only a cough came from television and nothing else, you don't think the judge would see through that excuse? They aren't stupid!! Telling a lie would be worse than just accepting the truth. Believe me, if she lies to the judge and he/she sees through that (and they do) THAT would jeopardise custody more than the actual video would.

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Lyndsey - posted on 08/27/2013

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Not great for your case. Im sure it wont go against you too much however if his name is on the birth certificate s and he has a suitable home for the children he will more than likely get 50/50. Sorry and good luck x

Rachel - posted on 08/27/2013

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How in the world did he even get his hands on that to begin with?
I'm not sure about whether he can use that against you but I'm guessing he can.

Melinda - posted on 08/27/2013

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Sounds like the ex is NOT happy about your relationship and does not want someone else around his kids. Getting at your kids hurts you and that seems like it is the goal. It is not fair to use the kids as leverage by either one of you.
I am not sure the tape could even be used. Your lawyer should try to block that as evidence depending on how he obtained the video. Should always be honest when you are in court or it could come back big time to bite you in the tush.
I would also suggest you take more care with your "personal" time with your boyfriend. Get a sitter...go to a hotel or his place unless he lives with you...which you should also think twice about until you are really ready for a committment. No matter how young your kids are they are effected by your choices.

Kari - posted on 08/26/2013

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The judge will look at the WHOLE situation and determine who should have primary custody. While I don't think it was very smart to be taping yourselves with the child in the room, I don't think that will be such a big consideration, after all, he is 5 months, not 5 yrs. I would not lie to the judge, because if caught, it would give credit to the fact that your exhusband might be the better primary guardian.

♫ Shawnn ♪♫♫ - posted on 08/26/2013

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Krissy, how in the world can you justify LYING to a judge?

Don't say its so you'd have a "better chance" of getting/keeping primary custody...because when you lie (or "stretch the truth") before a judge, you show lack of moral character, and that actually lessens your chances of getting/keeping primary custody.

My advice? It's NEVER good advice to advocate lying in a legal situation! Cheers!

Mary Fudia - posted on 08/22/2013

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I don't think he will win custody of the children as u ave always been d one there for them. I think he is just trying to use this against you coz he thinks that is his only hope to get access to the children. At the end of the day it not as if u woz performing sex or your son was awake at the time watching you. To me it doesn't look like look like u ave done anything wrong that you should be worry about as long as u her a good mum and ave people to witness it. Stay clam n relax

Jan - posted on 08/22/2013

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Oh I am so sorry for what you are going through. That is alot on your plate, plus raising wo little guys. Hopefully a judge will be fair to you. Keep positive.

Ev - posted on 08/21/2013

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Brandi-Your question has been answered. Either the judge will admit it into the court case as evidence or the judge will just not allow it. The judge will take a lot of things besides a tape like that into consideration. But you can not be guarenteed that you will have full custody, joint custody as primary parent or non-primary parent, or loose full custody and become the non-custodial parent. You have to look at all options in your case and be prepared for the worst and hope for the best.

Janice-Do you have any experience in child custody personally yourself?

Brandi Lynn - posted on 08/21/2013

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That's exactly what he's trying to do Janice. He's been begging for me back and since I keep saying no THAT'S when he went for half custody because he knows my kids are my life and that's a way to hurt me. And yes that's what I'm asking, will it make me lose MY HALF of the custody if the judge were to give 50/50. Can ONE tape do that?

Janice - posted on 08/21/2013

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I think what she is asking about is losing custday all togather, over the tapes. The guy is more than likely trying to keep her from having a life of her own. Some men do that. Most judges know that.

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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Brandi, we've answered that. If that tape is considered proof enough to the judge, yes, it could have an effect on the decision.

We don't know. We were not there, we did not see/hear the tape, we're not experts. We can just base answers on our experience and go from there. What concerned me is that Janice seemed to think that you'd come out of this guaranteed the sole custodial parent, but you need to understand that that may not happen.

As long as you're ready for that, and have YOUR side of the case sewed up, you'll be fine :-)

Janice - posted on 08/21/2013

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I really doubt that. If you were the one that filed for the custody, you were more than likely, awarded a judge in your favor.

Janice - posted on 08/21/2013

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I'm not going to argue with you, I could care less about your opinion. Don't know you and don't care.

Brandi Lynn - posted on 08/21/2013

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I appreciate all your guys' comments, but my questions has yet to be answered. I understand he may end up receiving half custody. (Even though I will fight for him to not even have that) but will my chances of getting my kids half be gone because of that one tape?

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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Janice, this is not a bashing community either, and you're taking way too much offense at everything.

Question: What does the sexuality of the judge have to do with a custody case?
Answer: NOTHING AT ALL. NOT A DAMNED THING.

Question: would you really be so narrowminded that you'd actually request an authority figure be removed from working on something simply because of their sexual orientation, which (if I may point out) is absolutely none of your damned business???

Answer: I think that you really would be that bigoted, and narrowminded to do just that.

Just because Jodi, myself, and others are trying to point out BOTH SIDES OF AN ISSUE doesn't mean that we're advocating one way or another, just that we've seen BOTH SIDES and understand that it doesn't always play out the way we want it to.

Which is better: to face reality? or hide in the sand, hoping that you'll get what you want?

It's been awhile, but I can honestly say that your position on sexual orientation has got to be one of the more bigoted ones I've seen in awhile.

Janice - posted on 08/21/2013

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Have a babysitter for court. Best not to take your children to court if possible.

Janice - posted on 08/21/2013

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I don't think so. But, you never know about judges. Look nice and responsible when you go to court.

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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Brandi, what Jodi, Evelyn and I are saying is that you cannot take hearsay into court and expect a good judgement. Neither can he.

Yes, you need a lawyer, if only to explain to you the ins and outs of the court system, in regards to visitation/custody/support cases.

Just because the ex is in the military doesn't automatically disqualify him from being a parent to his kids, nor does it automatically mean that you'll get sole physical custody. You being a stay home mom (or whatever, just an example here) doesn't guarantee that you'll get full custody either.

What we are advocating is that you BE PREPARED FOR EVERYTHING. That way, if you do have to give partial custody up, you won't feel like you got screwed, and you'll be allowing the kids to know their biological parent. You really don't have the right to take that away from them. Forget about HIM...What matters is them, and whats best for them.

You sound young. That's not a bad thing, but with age comes experience. That's where we're coming from. Experience.

So, you can either retreat to the sunshine and rainbow fantasy world where, because you ahve a female judge, you'll win...or you can be willing to face reality, get your ducks in a row, and present the best, most logical case that you can...and have better luck!

Ev - posted on 08/21/2013

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And I took the time to read this before I go to a class...I am a mom of two who are now in their twenties and mid-teens. I have been through a horrid custody case and we ended up with joint and dad had primary care BECAUSE I could not afford to fight him in court and the kids did not need to be pawns in a custody war. I felt it was more stable for them to know that they were with dad these days and with mom the other days and certain holidays one year and the others the next year. And you got to have proof to get the judge to see it your way. Hearsay does not cut it. You need those witnesses, police reports and whatever other documentation is needed to prove he is a danger to the kids. Its not about you and him anymore...its about the best for their needs. You need to talk to that lawyer and get things settled. My best piece of advice is LISTEN TO YOUR LAWYER.

Brandi Lynn - posted on 08/21/2013

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And this post wasnt to ask or shoot down my ex it kinda just became that way. All I was asking is the little video he has of nothing but a cough, COULD THAT GET MY KIDS TAKEN AWAY? That's all I want to know.

Brandi Lynn - posted on 08/21/2013

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I have a lawyer? This is just something I was looking for extra opinions on.

Jodi - posted on 08/21/2013

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"I have a right to my own opinion, and I spent alot of years in a court room. Thank you. Like I said this room is for the woman and the child. Are you the mans attorney? Maybe you need to be in a fathers room. It's not all about you either."

That doesn't make you any less of a bigot.

I actually support the rights of the child, and children have the right to a relationship with both parents. Should I sugar coat my advice to a mother? How is that going to help? She needs to hear what she is facing, not some stupid, bigoted opinion about gay judges.

Jodi - posted on 08/21/2013

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Brandi, I am not trying to understand this guy because I only have you telling me what he is like. But your hearsay is not evidence. If you have evidence, great, BUT evidence of abuse against you is not necessarily evidence that he will be a bad father. What you are seeking here are objective opinions, and I am providing that. I don't know you, and I don't know him. The FACT is that courts frequently recognise joint custody. So don't downplay that he MAY get joint custody. It's not like he is applying for full custody. It sounds to me like you need to get yourself a lawyer.

Janice - posted on 08/21/2013

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I have a right to my own opinion, and I spent alot of years in a court room. Thank you. Like I said this room is for the woman and the child. Are you the mans attorney? Maybe you need to be in a fathers room. It's not all about you either.

Jodi - posted on 08/21/2013

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"A gay judge on a custody case, may be impartial to the woman."

What on EARTH right do you have to make that judgement? Seriously! His sexuality has nothing to do with it.....unless you are a bigot.

Janice - posted on 08/21/2013

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Why does this child need to be bounced around so much at such a young age?

Brandi Lynn - posted on 08/21/2013

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Having custody isn't important to him. If it was I'm pretty sure he would of tried to see his newborn more than 6 times for an hour his whole life! He is now 8 months. His oldest 2 year old son he has only been with for 6 months MAX. He has missed both of his birthdays. By choice. He was screwing a girl on his sons first birthday. He wants half only because he can't make his expensive ass truck payment and needs more dependents in order to make more money to do so. He had also told me he wants the kids so he can live off base instead of the barracks. Saying the kids would be in daycare from 5am to 6-7pm. How is that okay? Obviously you are stupid if you think his abusive past still gives him the right to have my sons. He's also doing this as a way to get me back. He knows I love my boys more than anything and he has recently tried getting back with me and I have said no many times that's when he started trying for half custody. You obviously don't understand this guy if you think he "wants" or should "have" custody of my kids. Let alone in a completely different state than me. Especially when my kids don't even know him! And I'm not saying that's what I'm gonna tell the judge. Obviously both of us could easily say that. I'm gonna bring my PROOF to the court & let her do her judging through that. However he can bring his tape of really nothing and hope that's enough, but if the judge is smart at all, she will realize the best interest of both my kids is with me.

Janice - posted on 08/21/2013

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I am not making judgement on him, it's not about him, this is not a room for him. It's about a mother and a tiny child.

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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Janice, just out of curiosity, what is your basis in making judgements about this person?

You are talking to Brandi as if you've been in on the entire ordeal, and can GUARANTEE that her ex is unfit.

Well, honey, you cannot GUARANTEE a damn thing, and to continue to encourage someone to not fully prepare themselves for everything that could happen in this case is slightly irresponsible.

Fact: Brandi is in a custody case.
Fact: Depending on the evidence presented, a decision will be made based on what the court feels is best for the children involved.

Speculation: Brandi is a great mother, and ex is a horrible parent
Speculation: a gay, male judge will decide in favor of the buff military man
Speculation: a female judge will decide in favor of mom
Speculation: a video will be admissible. (depends on the judge)
Speculation: the ex is unstable

See, you're offering more speculative support than actual reasonable advice.

And to further Jodi's response, you claiming that Brandi will get full custody because you "doubt" a judge would give custody to someone in the military isn't a guarantee either. If a military parent provides a more stable environment (even during deployment) than the non military parent, they get custody.

The whole deal hinges on what is considered to be best for the kids. And mom saying "but they've only known me" doesn't cut it. Dad saying "I've been their sole monetary support" doesn't cut it.

Janice - posted on 08/21/2013

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This is a mothers place and I could care less about the guy. I'm not trying to help him.

Brandi Lynn - posted on 08/21/2013

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He has a history of physical abuse. Two gfs before me have also put restraining orders on him. I was granted a protection order only 2 months ago because he wouldn't stop blowing up my phone and saying weird things. He is not stable. Because of ONE tape that hardly has ANY proof of a baby being in there is not something I would think A judge would base custody off of. Especially since that's all he has on me. And harm to my kids? Abusing the mother of his children IN FRONT of them is a big deal and enough to ruin a kid. My oldest son is now terrified of any male giving me even a hug. If I cry he freaks thinking I'm hurt. That's all because of what he has seen from his dad. So if the judge can't look past a stupid tape for the safety of my kids then I don't know what this world is coming too. Like people have been saying. You need hard PROOF I have my proof on the abuse but his "proof" is simply an unrecognizable cough in the background.

Jodi - posted on 08/21/2013

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We can't say that because we don't know him. Only a court can make that objective decision. The OP certainly can't because her view is subjective. I am just suggesting that he has the right to petition for half custody, and many judges these day recognise that, so statements like "Because having custody of my kids is really important to me" won't cut it because having custody is clearly important to him too.

Jodi - posted on 08/21/2013

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"If the judge is male and gay, I would try to get another judge."

Wow Janice, just wow. I have no words.

@ Brandi, many judges now recognise joint custody shared by both parents. I don't know the laws where you live, but unless you have absolute proof that he would be a danger to the children (not you) then he could get it, video or no video.

How on earth your ex got hold of a video like that boggles the mind. But really, I doubt that alone will give him half custody.

Brandi Lynn - posted on 08/21/2013

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Because having custody of my kids is really important to me? That's why I'm so worked up about it. I have a lawyer & will present him with this info and see what he thinks, but the tape was not sex. There was no noises made between either of us. The only noise you hear throughout the whole tape is just that 2 second cough. He's a 5 month old BABY who was SLEEPING. It's not like a sexual act was performed in front of my kid, that would never happen. He was definitely asleep, in his own crib & not aware of anything. If that is the only "proof" he has of me doing anything "bad" or "unfit" then I don't see why the judge would make the custody based on that one incident. Especially when he has been to jail for abuse which was performed IN FRONT on my oldest son. And that was even said in the police report.

Janice - posted on 08/21/2013

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I don't think the judge is going to do anything to her for that taping, the baby is to young, learn from it and don't repeat it. I doubt the judge is going to award custody to an active military guy. Who will take care of the baby if he needs to be out on his tour?

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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All I'm saying, Brandi, is that if it is not solid, don't present it.

If you're that worked up about what you claim to be a little 'cough' I'm wondering exactly what was going on in that tape...and why it was being taped in the first place.

Brandi Lynn - posted on 08/21/2013

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For proof wouldn't you need to see or hear more than a cough in the tape? How can he prove it was even my son coughing? That's what Im saying by having little proof. The only noise that was made was a little cough then silent after that. It never shows the crib or even a baby in the room.

Brandi Lynn - posted on 08/21/2013

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People have there reasons as to why they do things. My son was asleep in his crib and he was only 5 months old. I don't see how the judge would base custody off of that. I have witnesses as we'll as the reports to prove his abuse. Cops as we'll are being witnesses in this court case. And I live in Alaska. I hear the judge usually does favor the mother. And in order to lose custody you have to prove unfit. One tape of really no evidence but a little "cough" is hardly what I call evidence. That is the only thing he has on me. And no this isn't going through military court.

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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Solid incontrovertible PROOF is what is needed, Janice. Witnesses are great, but if they don't have solid incontrovertible proof...then it won't matter, but you could be taken as being frivolous.

Janice - posted on 08/21/2013

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Bring as many witness as you can against him, on your behalf. A friend that can have good character report on you. Or even a letter maybe, have it notarized.

♫ Shawnn ♪♫♫ - posted on 08/21/2013

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Wow...the misconception that: Judges always favor the mother...is wrong.

Brandi, you need to make sure that you have all of the documentation for what you are seeking (full primary custody) just as he will have to make sure that he has all of the documentation for what he's requesting.

And, yes, depending on the court and judge, the video could be considered admissible evidence. The only time adultery would be admissible is if the court is a military court, as infidelity is against the military code of conduct. HOWEVER, you also will not be able to use his military service as a reason why he should have little or no custody, because it is his job to be deployed in various places.

So, if your proof of his abuse, etc, is solid, then relax, the judge will be fair. If his proof on you is solid, then you have to be prepared to answer some tough questions.

Why on earth would you tape sexual relations to begin with? Only people like the Kardashians make money with it...and it only serves as fodder for the mill in cases such as yours.

Brandi Lynn - posted on 08/21/2013

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I have a female judge. And he isn't seeing anyone that I know of right now. He also lives in a different state than me. He's in the marines. He has however cheated on me several times throughout this marriage. Along with the abuse. I am just so terrified that one mistake will ruin me. I didn't even think of it being bad when a 5 month old sleeps in the same room as the mom my kids are always well taken care of and I have no other issues or problems. He has been to jail though and they have police reports on the abuse. I would think the abuse would over power a little harmless sex act, but it's been driving me crazy just thinking the thought of losing my sons. I'm the only mom they know and they have both been under my care since birth. The ex has seen out 8 month old 6 times his whole life and only for a couple hours at a time. He's seen our 2 year old probably 6 months of his life. I just hope the judge can see past that video and see that I'm the best mom I can be. I read adultery also can't be used in custody cases cause it has nothing to do with the case. It's just that video that's making me over the top nervous. You don't see or hear anything from the baby other than a quick little sleepy cough. That's it.

Janice - posted on 08/21/2013

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Usually, the judge will favor the mother. Is he not seeing anyone himself? Take witnesses on your behalf. Never know, If the judge is male and gay, I would try to get another judge. Pray about it and go to church. Dress really nice. If you have a suit, wear it or a nice dress. Don't try to look sexy for court, look professional.
Don't take your boyfriend in the court room. Won't impress the Judge. They usually don't like that.

Brandi Lynn - posted on 08/21/2013

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Yes I have. And our divorce is almost over as we'll. do you think this will hurt my chances in court at all? He was only 5 months and had to sleep in the same room as me. He was also sleeping at the time...

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