Custody - can a guy get fair outcome?

North Carolina Divorce Law Divorce and Separation Answers
1

A fair outcome would be for you and your spouse to agree to share custody with equal time. That is what would be in the best interest of the children and would be the most fair to you both. Joint legal and physical custody with equal time means that both of you basically have things as they are now. The children do not have to decide who they stay with and therefore do not feel like they are choosing one parent over the other, which they should never be made to do. Once you can agree to this, the details can be worked out between you about things like insurance and who buys school supplies and clothes.

Until custody is decided by either agreement or court order, both parents have equal rights to their children. If your wife refuses to sign an agreement of this type then it may need to be decided in court. Is it possible that you can persuade your spouse to sign an agreement like this rather than go to court, spend thousands of dollars on lawyers, a lot of time and emotional stress, trying to show each other who loves the children more? In the end, the children are the ones who lose. Could you make her understand that? The courts would look more favorably on the parent trying to share custody than the one trying to keep the children away from the other…but sharing custody means being able to work together and not let your personal feelings for the other parent to get in the way of the decisions you make for your child/children. It’s not easy regardless, but it IS easier on the children with shared custody.

We have my stepchildren every other week and though he still pays her child support due to the salary differences it is actually very fair an the boys know that they have a home with both parents. My husband is a very active father also but they do have to stay at a sitters after school on our weeks where his ex works nights so she can pick them up from school on her weeks. If something comes up we occasionally switch a day or weekend…but we try to even it out. We have the boys Christmas eve one year and Christmas day the next…they are always with their mother on Thanksgiving, and we have them the following Sunday every year.

In trying to work out those types of details, the thing to remember is that your children will go through the divorce along with you. But just because you are losing your spouse, does not mean that they should lose a parent. They will not understand. They will be angry and confused and sad. They have all the same emotions that we have but they do not have the experience to deal with them. They will need to be able to vent and you will need to be able to explain that this is NOT their fault and they have NO control over this.
My advice is not to stay in a bad situation for the sake of the children. Being a child of divorced parents, I can tell you that they know you are not happy even though they would not explain it that way. This is all they are used to and though it may be miserable for you and your spouse, it is comfortable. If you can work out your marriage and stay together, do it for your own sake. Children will adapt and if they begin to see that you are happier when you are not together, they eventually will understand. And just so you know…that may not be until they are a little older and have time to get used to it. Be patient with the children if you do decide this is how you want to proceed.

2

The court have a definite bias in favor of the status quo, that means that after a separation, children often spend more time with the primary caregiver and the parent who was not the primary caregiver often gets secondary custody. I believe, based solely on what I have seen in my own practice, that woman are the primary caregiver more often than men. I think that may be the source of the perceived bias against men in court. I have represented many fathers who have gotten primary custody of their children. I am not sure if this was the advise you were looking for.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

3

Thank you stepmother for taking the time write such a thoughtful reply.
What you say here:

“Is it possible that you can persuade your spouse to sign an agreement like this rather than go to court, spend thousands of dollars on lawyers, a lot of time and emotional stress, trying to show each other who loves the children more?”

helps me a lot. My spouse was very angry when discussing seperation and she definitely wanted to punish me in any way possible. However, she really has no clue about the cost of
a custody battle and I think once she finds out she will have a change of heart. I am very open to compromise and I think she will come around…

Helena thank you also for your reply and although you are correct in saying this may not be the advice I am looking for, the insight you have provided helps me determine how flexible I should be in negotiating custody with my spouse.

4

It is a lot of money to spend. My husband filed for primary custody because his ex was threatening to move with the children and got greedy on the amount she thought she could get from him. They had a signed agreement with joint custody and equal time, even down to listing which days of the week they each had the children. After the preliminary hearing, she settled with him and a new agreement was signed by the judge. Basically, they EACH spent around $10,000 to get much the same agreement that they had prior to court with the exception of she is getting less money now than she was before they went to court and she has more finacial responsibilities for the children than before. She didn’t come out any better and they both ended up losing enough to put the kids through college.

It’s a good idea to ask three questions when dividing up things also; How important is this to me? Can it be replaced? And Is this worth fighting over? Fighting for your children, yes, always worth the effort. And it may be worth fighting for your own family heirlooms, but fighting for the sofa or washing machine, not worth it. Divorce should be, “We are not happy and want something better for us both” instead of, “He/She’s not happy?..Oh just wait, I’ll make her/him sorry they were ever born.” At one time you loved that person enough to marry and have children with them. Divorce is just as difficult on the person leaving as the one who gets left, regardless of whether they ever let you see it or not.

5

One thing that you haven’t mentioned at all in here, despite the fact that you write that you have “…been unhappy for 10yrs” is if you all have tried counseling? Does the fact that your spouse was very angry mean that she had no idea that this was coming?
If there is any way of salvaging this relationship, especially for the sake of not having to go through a big custody issue with kids and very vulnerable ages.
If you have tried counseling and there is no hope of making the marriage work and you are constantly fighting or basically living sep. lives in the same home then yes, do whatever you can to work out an equitable agreement as far as custody. Your chances will be better at that point or if you go to court if you remain in their school district so that visitation is easier for all. Counselors and judges want the least disruption possible in a child’s life. If she is unwilling to sign, despite being shown the costs…hammering out another (better) custody agreement for my husband and his ex was probably close to $2000 each for 6 months worth of lawyer and counselor. This was above and beyond the actual separation/divorce.

6

I agree with all the responses above, however they all lack a man’s perspective - which I can give to you.

If you and your wife can’t agree on custody and this thing goes to court you are very, very likely going to lose. You aren’t likely to be given any more time with your kids than the standard every other weekend and one dinner night a week deal. If that limited amount of time is worth the risk, then go for it. But my advise is against it.

My devotion to my children was known to everyone that knew my family. But when my wife ran off with our kids after her affair the quality of my parenting didn’t mean squat. Helena said it right - whoever had more time with the kids between you and your wife is going to get the kids. The other parent will be reduced to visitor status. Who usually has spent more time with the kids? Duh!

DON’T LET THIS THING GO TO COURT. YOU WILL LOSE. Use everything you can think of to settle out of court on a fair custody arrangement - because you won’t get any better from the court. Going to court is ugly, ugly business. It will destroy you, your wife and will significantly impact your children’s well being.

But I understand how it is to be a loving father with a vindictive wife. If you take a long time to try to work out a good deal with your wife and she absolutely won’t go for it - then pull out some big guns. Scare her with the prospect of court. Educate her… help her to understand that she will lose tens of thousands of dollars in court fees over this. Help her understand how the court fight will ruin everyone - but if that is what it takes for you to be able to be in your children’s lives then you’ll do it! Be tough - but respectful. If she doesn’t feel like you could actually win a court case then she will never be humble enough to negotiate out of court with you fairly.

I’ve read hundreds of messages in this forum and others. I’ve read dozens of articles and many books on the subject. The man usually loses. The odds are against you. You will be told by others that you’ll be given what’s fair. Double check the gender of those people - you’ll find that almost all of them are women. I know how inappropriate and unfair that sounds, but if you spend enough time researching you will find out that I’m right. Not too many fathers are going to give you much happy counsel. Go to father’s rights web sites and you’ll see what I’m talking about.

If you are simply bored with your wife, then for heaven’s sake get marriage counseling. Statistics show that couples considering divorce, who stick it out and give it their best efforts together, are usually very happy and content with their marriages after a few years. These days it seems to be “politically correct” to tell you NOT to stay in a marriage for the sake of the children if you are unhappy. I think that is, for the most part, bull. Ask 100 people who have divorced parents if they would have prefered for their parents to have remained together and kept the family unit intact and most of them will say yes. Divorce screws kids up. Sometimes it is necessary - but most of the time it’s because the couple is too lazy to make deep and difficult efforts to repair their relationships. I’d rather have a mom and dad that bicker under the same roof than a mom and dad who bicker from separate homes. If you and your wife presently behave in a way that affects the kids then your behavior will likley continue to affect them after divorce. Divorce doesn’t make you guys suddenly start getting along “for the sake of the kids”.

I hate divorce. I hate what my mother’s divorce did to me and I hate what my divorce has done to my children.

Don’t ever yell or disrespect your wife in front of the kids. Treat her better than she treats you. Don’t expect her to respond in kind. Be a good man and a loving husband in spite of what she does or doesn’t do. Read books that will inspire you. Find your love for her again. The best thing you can do for your kids is to love their mother. Buy the book DIVORCE BUSTING by Michelle Weiner Davis. Read it with your wife if she’s willing. If not, read it by yourself. Fight for your family! Don’t throw it away without having first given it everything you can. If, in the end, you two just can’t mend the relationship then do what you need to do. But don’t ever think that you are going to get a fair deal in court - because you won’t. Maybe if you had been a stay at home dad - or maybe if your wife had a record of physically abusing your kids - otherwise you are up a creek my friend.

7

Hello all,
I have spent a lot of time searching this forum and my current impression is, if you
are a man and have to litigate over custody, you will most likely be the loser. Looks like Mom having primary physical custody is almost certain and Dad will most likely end up with less than 1/3 overnights and huge child support payments (ala Schedule A). Is this pretty much boiler plate or am I getting a skewed perspective?

I am asking because I have been teetering on moving out for months (have been unhappy for 10 years). However if it means losing that much access to my kids as well as financial ruin then I will continue to “suck it up” as long as I can take it or until I drop over dead. It may help to provide my background. Married 12+ years, 2 kids - 10 and 8. Active father but sometimes works long hours (about 2 weeks out of 8). My income is 2x over spouse (she works part time but still makes good money). No physical violence. No adultery. Spouse refuses to sign anything. Any advice or shared experiences would be very helpful. Thank you!