Child Custody - Full vs Primary vs Sole vs Shared


#1

Wife had an affair, we are getting a divorce. I’m allowing her to keep the marital home in order to minimize the trauma to our kids. We have one small child and I have a step-son 16 from her previous marriage.

She’s stating she wants Full Physical Custody of the little one and shared legal custody. She has no problem with liberal visitation as I’ll live close by. Because of my work (I travel) I cannot assume full physical custody myself without quitting my job and then losing the sole support for our family would likely not be favorable to the courts.

Is the fact that I travel considered a detriment to my position? What rights am I giving up agreeing to giving her Full Physical with the Visitation spelled out vs arguing over 50/50 even though logistically I would be unable to keep my child 50% of the time unless I find a new job? As long as I have shared legal I can have a say in medical, school, religion and other important matters of my child’s life? Also, I can prevent her moving out of state?

Lastly, the step-son has been my son for 12 years. He’s estranged from his father. I assume however since he was not adopted that I have no rights to him legally or for visitation?


#2

I believe you are correct regarding your stepson. You have no legal rights to him as you did not adopt him.

Regarding your young child - the wording here is tricky as it can be construed to mean whatever the parties want it to mean should it be agreed upon by the parties. Shared legal is a good thing, but your description of “Full Physical Custody” sounds murky at best. Just because you share physical custody doesn’t mean it has to be 50/50. You can share physical custody and spell out the visitation however you see fit. You can add language in your agreement that would prevent her from moving out of state, also most judges frown upon a parent moving out of state and making visitation impractical. The Rosen website had a great video on understanding the terminology for custody as it varies from what they mean in court to what they mean in a separation agreement.

Your travel CAN AND WILL be a negative against you. Especially if you push for a visitation/custody arrangement that you cannot keep. The opposing attorney will easily demonstrate your incapability. I would pursue a visitation schedule that is realistic and in the best interests of the kids. However, just a warning, getting MORE custody later is extremely difficult. So get as much as you want now (that’s reasonable for you to maintain), as it’s unlikely to change later. Needless to say the amount of time you have your kids effects your child support.

Lastly, she’s saying she has no problem with liberal visitation, which is great. But who knows if she’ll change her mind later, so get it all in writing and properly filed.


#3

Your travel is not a detriment per se, but it does prevent you, practically speaking from having primary physical custody. I suggest that you agree to have joint legal custody, (allowing you a voice in making major decisions regarding schools, health care, ect) and shared physical custody, with your ex begin the primary custodian. I would also advise you to have a default schedule spelled out in the event you and your ex don’t get along as well in the future. Having a default schedule will also prevent her from moving somewhere far enough to make your visitation impracticable/
You do not have any legal rights to see the older child.