Custody if no agreement is ever signed


#1

I’ve been separated 11.5 months and still the custody consent order is not signed. We have, however, been operating as if it were signed with me having primary custody and him having them every other weekend for the entire separation.

This is not a likely scenario, but if we were to have no agreement and he suddenly wanted joint or even full custody, would a judge put any weight on the current arrangement for the kids? Seems the judge would take into consideration the status quo and how settled the kids were with the current arrangement.


#2

The judge would likely give deference to the status quo, and can infer that the current schedule is commensurate with the children’s best interests.


#3

In our draft SA, the paragraph below has me a little nervous. The agreement first outlines the fact that I am the custodial parent with him having an optional overnight during the week, plus every other weekend from Friday-Sunday nights. Then it has this paragraph:

“In the event father secures gainful employment with gross earnings of $42,000.00
annually or greater and is living in a dwelling with 3 bedrooms or more within twelve months of
the entry of this order the parties shall begin to exercise a 50/50 physical custody schedule.
When the above conditions are met the parties shall return to mediation to reach a mutual
agreement on a 50/50 schedule that factor in the children’s school schedules, extra-curricular
activities and the parent’s work schedules.”

If the stated conditions are met, would I have to agree to a 50/50 schedule in mediation if he wanted one? Or could I argue that we’ve been operating with the status quo and that it is in the children’s best interests to stay with the current schedule? Would a judge likely still give deference to the status quo, and infer that the current schedule is commensurate with the children’s best interests?

I’m thinking of having the wording changed to read:

“In the event father secures gainful employment with gross earnings of $42,000.00
annually or greater and is living in a dwelling with 3 bedrooms or more within twelve months of
the entry of this order the parties shall begin to exercise a more equitable physical custody schedule.
When the above conditions are met the parties shall return to mediation to reach a mutual
agreement on an alternate schedule that factors in the children’s school schedules, extra-curricular
activities and the parent’s work schedules.”

Would this be “safer”?


#4

I interpret the language as it reads to say you SHALL begin a 50/50 schedule, and that the mediation would be necessary to figure out the logistics.

The language you propose is a little off, in that you don’t refer to custody as equitable, as that is not the paramount consideration, it is what is in the children’s best interests.


#5

So with the current wording, would I be bound to a 50/50 physical custody arrangement if I sign the agreement as-is? If I decide when the conditions are met that it is not in the children’s best interest for a 50/50 arrangement and prefer to remain as the custodial parent, is a judge more likely to honor the status quo or the signed agreement?

What would be better wording to ensure that we consider an alternate arrangement, but that I’m not necessarily tied to a 50/50 schedule?


#6

In my opinion yes, you would be bound to a 50/50 schedule if the wording remains as is. I can’t say for sure what a judge would do in this situation, as each case is based on its own set of facts, however if you sign an agreement stating that 50/50 will begin when the ex finds a suitable home (and other conditions), there is a presumption that a 50/50 schedule is what is in the children’s best interests.

I suggest the agreement simply state that you will return to mediation to determine an appropriate schedule upon the father meeting the conditions you outline.