That is the way I read that statement. If you do not have a current custody order then you can file for custody with the courts. You would not have to show changed circumstances as you would with modifying an existing order. Though an agreement would hold up in court, this would be the initial custody suit as far as the courts are concerned.
This is why though it’s easier to have a signed agreement on custody during the separation, custody can still be filed for at any point.
As a side note: There are a lot more judges ruling in favor of equal time if the parents live close enough to each other and are able to work together for the child’s best interest.
My husband and his ex share joint custody with equal time and previously did two days here 3 day there and back and forth one day int he middle. They now have the arrangement that every Wed. the boys stay with their mother and every Thurs they stay with us. The rest of the week is with one parent and the next week with the other. This way, one day of every week they have to switch but that is it. I would prefer that it be the complete week but their mother’s work schedule prevents her from being able to do that and still have time with them.
She always says she wants what is best for the children but her actions say otherwise. In this case, with all the back and forth, a weekly arrangement would probably work out best. Instead of different house every night for homework, an extra curriculars. It seems it would be easier on the children if mom did a week, took them to their activities, dad did a week and did the same.
She yells at my husband in front of the children and tries to argue with him at least twice weekly. Also, she has verbally attacked him at the children’s activities. It seems the less the parents have to see each other, the better the children will be because they won’t have to watch their mother constantly attack their father. They will get more time with each other, he could put his children to bed more often. We live in close proximity to each other so school would not be an issue.
We all see it as a better situation, she will fight it. She believes the SA is written in stone. We were under the impression it would be an uphill battle to modify for more equal time. There is no court order though, only the SA.
Then I would say, gather all the information you can, take photos of the childrens’ rooms, house and neighborhood. Find a calendar of events and sit down and work out a schedule that you want to have. File for custody. They will have to go through mediation and have a preliminary hearing. Your job will be to show the courts that since the agreement was signed, circumstances have changed enough that either parent is as capable of caring for the children as the other. At the prliminary hearing the judge will hear from both sides. The mother’s job at this point will be to show the court why it will not benefit the children to spend more time with their father. This is where things will get sticky for her. If you have witnesses that can testify that she has verbally attacked him in front of the children, have witnesses that have been around the children while they are with their father, and have a schedule that you are willing to “settle” for, then she will be the one with an uphill battle…
It may also be a factor that if they do not currently share custody the child support amount may change. Since child support is based on the number of overnights, it’s possible that the amount he currently pays may go down. This may be another reason that the current agreement/arrangement is preferable to the mother.
I’m sure she would hate a change in child support. I honestly hadn’t even considered the possiblities of that changing. She makes more money now that she did 3 years ago while his income has never actually been what her attorney swore it was (off by 6k). The money isn’t an issue. He has paid it, it’s never once been late. He hasn’t even looked for a modifcation of support now that one child is no longer in daycare.
If she were to have a problem with less support, I wonder how the courts would see it. I would think it would be reasonable for them to just split expenses but I haven’t looked into any of that.
That is correct, if custody was originally decided in a separation agreement you do not need a substantial change to bring this before the courts.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details
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
301 McCullough Drive
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (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.
I took this off the Rosen Website. " If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the dissatisfied parent sued. In such a case, where the parties had not previously litigated but had settled custody by prior written agreement, the court would make its own initial determination of custody and visitation without either party’s having to show changed circumstances affecting the welfare of the child. The court’s initial determination would be based, as always, on the child’s best interests. "
Is that true no change of circumstances needs to be addressed if custody was decided in a SA??? The custody arrangement has never really worked out. It was done 3 years ago before one of the children was school aged. Now we are hoping for a more 50/50 split (one week on, one week off). Something that is more beneficial for the children instead of the every other day chaos they deal with now. She’s not willing to modify existing agreement(I imagine because she has so much control in the current one)