Custody filing question


#1

We’ve been separated for 1 year, divorced for 2 but do not have a custody/consent order in place. For this 3 year period, I’ve been the custodial parent for our 2 children where he has our son (4) every other weekend and our daughter (11) has not stayed with him in over a year although he has spurts of taking her to dinner, ice cream, etc. We have lived 30-45 minutes apart for the last month now.

If I were to file for custody, could I file to keep the status quo? Are judges more likely to honor the current schedule provided that the kids are succeeding with it? My concern is that if I open it up, then my daughter will be forced to go.

The reason I want to file is because he suddenly refuses to communicate with me now regarding logistics for our children, as he is mad that he can no longer file for ED and get half my 401k (per my earlier post and your advice). It is becoming difficult to operate without knowing when/if my son is going to be picked up, when/if he will be brought back home, etc. They’ve always been on a predictable and scheduled routine and this control/manipulation tactic is not good for anyone, especially them. My goal is to simply get the current schedule in writing so that everyone knows what to expect. If I file, he is going to say he wants 50/50 of our son (which he could’ve had all along and never executed on) and our daughter as well.

I know it is impossible to predict what a judge would decide if we ended up in court, but I’m hoping to get your thoughts on how risky it would be for me to file. If there is a strong chance that a judge would enforce a 50/50 arrangement, especially where my daugther is concerned, then I guess will just have to deal with the lack of communication.


#2

You are right: there is no way to predict what will happen in court. The judge will issue a ruling based on what he or she believes is in the children’s best interests. Whether a judge will put an order in place that maintains the status quo or one that would change the current custody schedule is best discussed with an attorney in your jurisdiction who can discuss the specifics of the case with you and the proclivities of the judges who may hear your case.

One thing to consider is that depending upon your jurisdiction, the court may have mandatory mediation before a hearing will be held. This can work to your advantage as your ex-husband may be more willing to compromise with a third-party involved.