Custody Concerns

North Carolina Divorce Law Divorce and Separation Answers
1

I have a few questions as I am facing global mediation at the end of this month. I will try to make this as short as I can.

Background – Husband was having an emotional affair with another married woman and I caught them both. We tried to reconcile but because I wouldn’t forgive him quick enough, he involved another woman in his life and left me. We have two kids, ages 6 and age 4 and when we separated, they were in preschool and he came to the marital home to stay with them when I worked part-time. When he decided that he wanted to leave for the new woman, he moved into his own apartment and because the kids weren’t in school, we agreed to him having the kids on his days off which are in the middle of the week with the agreement in writing (email) that when school started, they would go back to staying with him on Sunday and Monday night and be with me during the rest of the school week. When he found out that this would cost him more money b/c it would put him on worksheet A, he refused to go back to the agreed schedule when school started (I also have this in email). This is when I hired an attorney and he did the same. Due to the kids already being in this schedule and upon my attorney’s advice, I have kept the schedule the same b/c my oldest is just in kindergarden, so she doesn’t have a lot of homework, school activities, ect yet.

My EX works nights and weekends b/c he is in the food industry. His days off are Monday and Wed and he refuses to change his schedule. I work from home and have always been part-time but after he left, in order to make ends meet, I began working 6 days a week to get 40 hours until I could go full-time, which I have now done. I know I could have stayed part-time to have him pay more in child support, ect but I dont’ think that is the right thing to do. So, I am full-time and work from home and my hours are around the kids schedules to where I am home after school and with them when they are with me.

Also, another huge factor is that he left in May of 2013, introduced my kids to his new girlfriend over the summer and she began staying overnight in early fall. She now lives with him and has been since Jan of 2014 … and we just got divorced on April 14, 2014.

So here are my questions now that you know a little bit of the background:

  1. For custody, I am asking the courts to allow the kids back with me on Wed. I have tried everyway I know to talk this through with my EX to prevent court but he will not budge. He says that he wants them 50/50 but right now, they are only with him on Sunday at 1800 until Tues morning when they go to school and then on Wed morning until THursday when they go to school. I want my kdis to have a relationship with their father – this is very important to me b/c I grew up in a divroced home where my mom used me to get to my dad. I will not do that to our kids but I also want what is best for them for school. I have supported anytime that he can see them, longer times at summer and anytime on the weekends where his schedule will allow it. I am open to whatever he wants as long as the kids are in a stable home during the school weeks. And by stable, I mean, that they aren’t in his home on Monday, mine on Tues, his on Wed and then mine on Thursday. I just don’t think that this is a good, stable environment for them while in school.

My fear is that since he wouldn’t go back to the schedule we agreed to and I didn’t want to take Wed back as it would look bad to a court, that a judge might look at this and say that this is the schedule that the kids have been on and not change it. They are young right now, so I am thinking about when they get into higher grades. I have come across several times when my EX will put down that they did 20 minutes in math or 20 minutes on writing and my daughter will tell me that they didn’t do any homework at all but how do I prove this? I also have a copy of her attendance records and she has been absent 2x on his days and tardy 10 times on his days. She has been late once with me and it was b/c of an excused doctors note bc/ she had an appointment.

Do you think that I have a fair chance at getting them back during the school week? My lawyer advises that I do the tradiational every other weekend but b/c of my EX schedule, this will hurt him by not allowing him to see the kids and having to pay a sitter b/c he works all three of the days on the weekends. So, I have stated that I would be willing to work with him on the MOnday night b/c his business is closed then (So he would have them on Sunday and Monday night until Tues morning) and then they can have Sat mornings until he goes to work at 3pm and then every other Wed until around 6pm so he is still active in their lives. I am even willing to work with him on child support if he can agree to what is best for the kids. But I have to tell you that I am getting a little frustrated b/c it isn’t about the money to me. I am overlooking his infidelity issues and trying to do what is best for the kids but with him not budging at all, I am getting very frustrated. Should I ask for the traditional schedule and just still try and focus on maintaining a healthy relationship with him and the kids? Or should I just try and see if I can mediate or in court ask the judge to go back to Wed? Also, what role, if any will him having this new woman living with them (which has upset my kids a great deal) while we were still married in combination with the affair that I have proof of, while we were married? I can honestly say that I am amazed that he is allowed to do this with our kids. It was too early for him to do this and was even asked by my lawyer not to have members of the opposite sex having overnight visits while having custody of the kids on his days but he ignored it?

I know this was long, but our case is so different than others where there is the time in schedule to have a normal custody arrangement. I am just seeking advice on if I would stand a better chance of trying to get Wed back or if I should go the route of the traditional custody where I would ask that they give him every other weekend and also the impact of the living situation when having our kids? Thank-you so much for your time.

2

When asking for a specific custody schedule, you will need to be able to show the court why being with you during the week is in your children’s best interests. Usually, the minimal schedule we see is every other weekend, and sometimes that also includes one night a week. This is at least 6 nights a month. It sounds like you would want to limit his visitation to one night a week, which is much less than even a minimal schedule would allow.

Judges are used to creating custody schedules that take difficult work schedules into consideration. I would defer to your attorney’s advice as he/she has much more knowledge of your entire situation and can therefore give a better analysis of the potential outcomes in court.

3

I am sorry, I might have been a bit confusing.

Here is his current schedule that he now has the kids:

Sunday at 1800 until Tuesday mroning at 0900.
Then Wed from 0900 until THursday morning at 0900.

Since this is a crazy back and forth with school, I am asking for the courts to go to this schedule:

Every other weekend (or three weekends, if he wants) from Sat morning at 0900 until Monday morning at 0900. And then every other Wed evening until 1800.

THe reason that this schedule concerns me is b/c he works on Sat and Sunday and this wouldn’t give him much time with the kids and he would have to rely on sitters b/c he works.

So, I was also considering this schedule:

Sunday at 1800 (b/c he doesn’t get off work until 1700 on Sunday) until Tuesday morning until 0900 and then every Wed or every other Wed (whichever he wants) until 1800.

I don’t like the second schedule as much b/c it still has them at his home on a Monday, but I want them to have time with their dad and since he is off on Monday, if we can work together for that one night during school, then that second option might work.

My lawyer has said to ask for the traditional every other weekend and then Wed until 1800 so that he will have time with them. However, I am not sure about this b/c again, he works every weekend and that would really limit his time with the kids and that is not my goal. My goal is to not have them bounce between homes during the week, like they are now but he will not budge on his schedule at all so I am trying to figure something that is fair to their father and that will benefit them for their school schedule.

I can’t imagine a judge seeing that them being with him on Monday, me on Tues, him on Wed and then me on Thurs is a healthy schedule for their school. They are young now, with my oldest in kindergarden, but as they get older, this bouncing back and forth will become difficult for them. HE won’t change his schedule b/c it would require him to have to pay a sitter but he refuses to help me pay for anything and he doesn’t want to give up Wed b/c it will increase his worksheet B to worksheet A but I am also willing to work out the child support amounts to benefit the kids being in one home during the week.

He is asking for the schedule to stay the same b/c our oldest did well in kindergarden, but it is kindergarden and I have where on his days, she has been tardy for school 13 days this year and they stay up really late when they are with him. This isn’t a good place to start with school. He also wants this schedule to stay the same b/c he only has them two full days and he says that this is 50/50 custody, but it isn’t b/c it does impact what worksheet we go on with child support. Again, it isn’t really about the money to me but I am barely making it b/c I am paying for their childcare, preschool and insurance and he isn’t paying me anywhere near what even worksheet B would state. The income part of it is so much more complicated b/c I have to prove his income b/c he is claiming that he makes $30k less than what he made last year. The schedule that he has now is not 50% though and I am a bit confused how that all works?

Hope this makes better sense as I am not trying to just do 1 night a week at thier dad’s home. Just trying to decide on which schedule woule be best to ask for in front of a judge based on what schedule they have been on versus what I am asking for?

4

The child support guidelines base child support on the number of overnights, the expenses for the children and the incomes of the parties. You should have your attorney go over the calculations so you understand them.

Your custody proposal makes more sense to me now, but my advice remains the same. You will have to show the court why you believe that your schedule is in the children’s best interests. Consistency, etc. are good points, but if the schedule he wants is working and works better for both of your work schedules, then I imagine a judge would consider his requests too when coming to a determination on child custody. Again, I would defer to your attorney’s advice on how to proceed with negotiations and whether your schedule is reasonable under your situation.