Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Mom Seeks Custody of Only One of Her Two Kids While Dad Wants To Keep Them Together

A woman wrote me about her son and grandchildren, explaining that her son’s wife of 17 years left him for a younger man. She left behind two little girls, 13 and 8, who live with their dad for all but three weekends a month, which they spend with mom.


The grandmother writes: “My son filed for divorce and also for custody of the girls. Now she is fighting for custody of the 8 year old and wants to separate the 2 sisters. My son’s lawyer is advising him to settle for joint custody and allow the 8 year old to live with her mother.


“Does my son need to find a new lawyer that would fight to keep the girls together? My son desperately wants what is best for the girls, but doesn’t feel that (his wife’s) apartment is a good environment for them.”


While not knowing all the facts of this case, I can say that generally courts are loathe to separate siblings, except where the kids simply cannot tolerate each other at level much greater than normal sibling rivalry and contentiousness, and/or where the children live lives that are almost entirely separate, such as between a 17 year old and a toddler. The fact that one child might prefer the father and the other the mother usually doesn’t cut any ice. Court are willing to divorce parents, but not siblings.


Your son is entitled to a lawyer that will be a passionate advocate for his beliefs and the best interests of the children. Ultimately, the court will make its custody ruling based upon what it concludes are in the best interests of the children, and traditionally Missouri courts have concluded that significant on-going contact with each parent is best. But, whatever the arrangement, the two girls will likely participate together.


If your son believes that the girls should remain together, whether with him or their mother, he will have an ally on the bench. His lawyer should not be so eager to compromise that position.


Another reader emailed me in response to my recent column about a divorced parent moving. She wrote:


“My husband and I bought a house a year ago about a mile away from his children because he wanted to be close to them. (His ex-wife) has now decided to move in with her boyfriend about 45 miles away. We have (gone) to the court to prevent the relocation of the children and the hearing is not until November. In the meantime, she sold her house and made the move.


“Can we get her in contempt of court and get temporary custody of the children?”


I assume from your email that dad has already filed his objection with the Family Court to this move, but if he has not, this must be done within 30 days of his learning about the move.


Secondly, the facts you provided suggest that a motion to modify the existing custody order might be well-received by the court. With the move, the mother has separated her children from much that is dear to them: their father, their school and teachers, and a familiar neighborhood with friends. If the motion were granted, permanent physically custody might be granted to dad.


Concurrently, the father should ask the court to return the children to his custody temporarily pending the outcome of his motions before the court so that the children can be back in their old school when it opens in the next few weeks. However, be aware that these types of pending litigation (“PDL”) motions aren’t typically granted in circumstances like this, but it’s certainly worth a try. Good luck!