WAW1978's adventures in DB'ing

[stewart10]

WAW:

Not my area of expertise but I do have colleagues in my office that practice in this area. I ran your situation by them.
With a caveat that this would be how things would pan out under NY law. MA may be different. I also have some questions regarding some issues that could help your case.

I thought I was acting in the best interest of my daughter by leaving her in the house every night while I just stay there on my nights with her. Apparently not in the eyes of the court system. I have allowed my H to establish himself as the custodial parent.

The old school attorneys advice is always never leave the home under any circumstances (unless there is physical violence). The issue here is that your H can point to your absence as a sign of abandonment. I may be wrong but it was my understanding that you are home during the day with your D and just leave at night after she goes to bed. Am I right? Do you work full time? How about your H? There is an argument that can be made that there has not been abandonment based upon your answers to these questions.

The atty I spoke with said from the sounds of it that H has beat me to the punch and spoke with atty already as he is doing all the things that the atty would have advised me to do. Emails about visitation (all in his favor) and by being the one in the house with her and taking her to school everyday. The atty told me even things as trivial as who makes her lunch will become an issue.

This is true. It does appear that he is trying to build a case that he is custodial parent. Unfortunately things that don't seem significant (like making her lunch for school) can become an issue. I would not worry too much about what your H is doing and why.

Help me out here…do I have no rights? I am the Mom up until my H’s hours shifted I was the one who made her lunches and took her to school everyday for two years. Before that I was home with her everyday and worked nights so she did not have to go to daycare. Can all this be true? Two months of a separation will supercede 4 years of my care?

What is the current situation? Do you see your daughter during the day? What are your H's hours?

I am so scared and unsure what will happen. It seems to me H has been setting me up to lose my D this whole time. His controlling ways have not changed at all. She is the only bargaining chip he has since I don’t care about the house or any of the possessions or money. All I care about is my D & of course my dog.

Unfortunately there is no guarantee what will happen if things go sour. That you only care about your D is apparent and you just don't want to argue with your H in front of your D. You are trying to keep things as stable for her as you can and by you leaving at night, you are accomplishing that.

I told the atty that my Dad was setting me up in a duplex while I sort this mess out and he advised me to take everything I wanted when I go, including my daughter and to just tell H when he could see her…sort of how he has been behaving towards me.

Unfortunately this is where protecting yourself legally and trying to make the marriage work can come into a bit of a conflict. You are right that if you start doing a tit for tat, that will probably be the end of the M. This is where you have to make a decision. What is more important? Was the attorney aware that your ultimate goal is to try and make the marriage work?