Joint Custody


#1

You will have the right to appeal to modify custody when there is a “significant change in circumstances”. One change could be your child’s age at the time of the divorce and how that affects custody/visitation.
As far as legal custody and if that is compelling enough for your soon-to-be ex to keep you in the loop - no, not always. You should make sure that language is clearly stated in your agreements - e.g. you want to have joint legal custody and that means that you are consulted on any health, education, foreign travel…whatever you would like to include. The next step is for you to not just sit back and expect the schools/day care to keep you informed - you will have to make contact with them, show them a copy of your joint legal custody and provide them with phone numbers and e-mails…even then you may have to remind them and call them periodically and check websites for activities. The more present you are in your son’s life, even if you just see him every other weekend for now, the easier it will be for you to increase custody when you/he is ready for that.


#2

Yes, you an add those things into the agreement. You may want to consider having an attorney review it before signing it.

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

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

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

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

What words can i put in the agreement that would help me when the time comes when my son gets older and she wants to limit my time more? Is there anything that i can put in the seperation agreement now that would help me then getting more time with my son?


#4

NC defaults to Joint legal custody if it’s is not specified, which is what you described. If you want to ensure that you have more time in the future, then you need to be specific. What you want when your son gets older is joint physical custody with equal time. You can have joint physical custody even if he is with his mother the majority of the time. You can even put into the agreement Ex: After the age of (X) the schedule will be as follows: Every Monday & Tuesday the child will be with the mother and Wednesday & Thursday with the father. Alternating weekends and holidays. Be specific and do NOT sign anything that you don’t agree with. If you think that there’s a chance that down the road will be a problem then put into the agreement that the schedule will be reviewed as needed and that all major decisions will be agree on by both parents. If there is no agreement, the parents will agree to use a 3rd party not related to or involved with either party to help, like a parenting coordinator.

The best thing to do is to go ahead and make a pattern of having your son more. He is almost a year old and unless he is still breast feeding there is no reason that he should be solely with the mother the majority of the time. Go ahead and get him a couple afternoons a week if you don’t live too far apart. Set the pattern for this now, and it will more difficult for her to change later.


#5

I agree with stepmother - the more specific you can be now the fewer problems you will have later on. Spell things out and it will help avoid problems and court battles later on. If you saw Alec Baldwin on TV this week promoting his new book about father’s and custody you’ll learn from his experience. Communicate and mediate but be willing to stand your ground for your child’s sake.


#6

My concern is that if i try to put joint physical custody into the agreement now she won’t go for it and then we go to court, where a judge would award her more custody time. She has the money to fight this in court, i don’t. I want to try to resolve this out of court because i am worried that a judge would award her what she wants.I don’t know what to do.


#7

The thing that you should keep in mind is that until custody is decided by agreement or court order, both parents have equal custody/access to the child. You need to make sure that she’s aware of that. IF this does go to court the judge should be able to see that you are trying to work with her on custody. For the time being, she will have the majority of the time but when the child is older you expect that to change and if joint physical custody is in the agreement then it will not be a problem down the road. If you do not have joint physical custody, even though she has primary until a certain age, it will be much more difficult later on to change it. That’s why I suggested now that you make an effort to go ahead and get a schedule working. If you allow her to continue to have primary custody, then she will have a better chance of a judge awarding her primary custody. You need to be willing as mal suggested, stand your ground. Do NOT sign an agreement unless the custody is specified. Even if you end up in court and the judge does grant her primary custody you will have fought for your right to be a father and to be involved. Have the agreement state that you have joint legal and physical custody. If she won’t agree to that then try negotiating it so that she has primary custody until the child reaches a certain age. The bottom line is to shoot for the top and hope you land in the middle.

If she files for custody, it would have to go through mediation first anyway. There’s a chance that something could be worked out there…

Does she have someone else covering her finacial situation? You said that she has the money but you have only been separated 4 months, has ED been settled? You should have 1/2 the marital assets to work with just as she does. That includes savings and bank accounts, property, anything. If she makes more money than you do, is there a possibility that you should get alimony…


#8

Her parents have the money. They are paying for her lawyers. What if i put under custody, that when my son reaches a certain age we can negoiate for custody. Do you think she can take advantage of that? I actually have a better schedule with son than she does. I have him M thru F 7:30am to 3.30pm and 1 overnight per week. I am worried about when he goes to school. She says i would be able to have him every other weekend. That is not enough for me. Could i get more time if we went in front of a judge or would he award her more time?


#9

The lawyers here could probably give you better advice but I know that it’s popular to write up a parenting agreement that states dates and times down to alternating holidays on alternating years or hours of visitation on holidays. One option might be to state all of your concerns and work out the visitation or custody in advance of your child turning school age. A friend of mine in another state has split custody with his wife and they have it worked out with alternating weeks. One week his girls stay with him during the week and the next his ex does. I believe a judge and your lawyers would appreciate it if you could sit down and work everything out so the judge would never have to see you in court again. When it comes right down to it, it’s all about being fair and thinking of the children before yourself…make a concession, such as agreeing to let your ex have your child every summer over Labor Day weekend if that is a special weekend when her family goes to the beach or something…a little give and take here and there and you might be surprised how willing your ex would be to negotiate. Children are a gift and not a posession.


#10

You should also be documenting the schedule you have now. That will also set a precedent of what custody could be in the future. It is better to work it out between you. If she has an attorney, then it will look better for you that you are willing to work with her on custody rather than refusing to even discuss an alternate situation. Custody usually is the number of overnights a child is with a parent. Since you have the child all day every day, I would say that for the time being you have joint custody with equal time (if you are alternating weekends). There’s no reason that should change. When the child begins school, then if your schedule allows you should have him one week overnights and she has the next. That would be the same amount of time, just a different time of day. Child support is also based on the number of overnights so that could be why she’s not willing to compromise…just a thought.


#11

You can add provisions into the agreement that increase custody as your child grows older. You can make the schedule as detailed as you want. For example you could put a provision that lasts until the child is one, then another provision that lasts until he is two, etc.

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

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

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

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.


#12

I am going to ask for Joint legal and phyiscal custody for when he starts school. Instead of redoing the papers can we write it in and both of us sign it and it still be legal? Also if she dosen’t want to do it and wants to go to court, can she deny me to see my son now or cut down on the time i see him?What can i do if she trys that? She has had him overnights for 4 months, does that give her any advantage over me now?


#13

It is tough to MAKE someone consult you on absolutely everything but my suggestion would be to be as friendly as possible through all of this while still standing your ground. I would get a lawyer to represent you if she has one or at least have a lawyer look over the agreement. It will make it easier on both of you AND mostly on your son if you both are very active in his life and can get along. It IS possible! Especially with how the arrangement is now where you are seeing him almost every day and every other weekend. I think that if she can see that you sincerely want to be a part of your son’s life and wanting to secure that in the agreement isn’t a vengful act then this may work out well for all. Communication is key and a son needs his father. I didn’t notice anywhere that you say that you have your son overnight. If you don’t I personally would ask for that if you want it. Bedtime rituals are a neat thing and you have every right to be a part of that also. You aren’t simply a babysitter. I don’t think it would be unreasonable to ask for the time you have now and every other weekend and then think about what you want when he starts school or hash it out with your son’s mother. Just try to be reasonable and think of what would be best for your little boy


#14

Actually she has him on the weekends and i have him 1 overnight a week. But i don’t get to see him on the weekends.


#15

Since you do not have him on the weekends, I would you do as Helena suggested and put in detailed schedules. Since you have him every day I suggest that you keep him every other weekend. But the child support is based on the number of overnights and that can be a big factor for some parents.
You would need to deviate from the guidelines since you keep him the majority of the time. I suggest that you make sure that the time is equal after he begins school and please consult an attorney before you sign anything. If it does not say joint physical custody with equal time, then yes she can limit the amount of time you have with your son. It sounds as though neither of you are the primary caregiver but you are equal in that aspect. This will look good to the courts, but as I said the courts will go by what the schedule has been. I suggest keeping your son more overnights now so that you are creating that bond also. When your son starts school with the schedule you have now, you would only get to see him one night a week. Please change it now and please consult an attorney.


#16

she won’t let me have him every other weekend or any more nights, because she says she dosen’t spend enough time with him. She works 8 to 4.30 so she gets home at 5 and goes to sleep at 6.30 or 7. So she won’t give me more time with him. I do have himmost of the time when he is awake now, but when he starts school that will change. She put down in the seperation papers that once he starts school we will negociate custody. I do want to see him every week but i don’t want to traumatize him by moving him around every week.So i am trying to figure out something that would work.What a dilema!If she dosen’t agree with this then we go to court where always the judge sides with the mom.And i lose.


#17

That’s understandable I suppose. But as I said, keep in mind that child support is based on the number of overnights and this would put you paying the majority if you do not deviate from the guidelines.

I suggest that you change the part in the papers about negotiating when he begins school to a specific schedule. Since she’s willing to “negotiate” then she should be willing to let you have him on an equal basis, much the same as it is now except that it will be overnight instead of during the day.
She can NOT keep you from having him overnight, but it’s up to you as to how far to push this. She does not currently have primary custody so it’s not a matter of “she won’t let me…” it’s more that you have not taken advantage your rights as a father to have him overnight. As it stands now, you have joint physical custody with equal time. I suggest that you make sure that it how the papers read.

I still suggest that you at least change the schedule to every other weekend for the time being and then when he begins school, the schedule changes to every other week. Sunday through Monday. You drop him off at school and she can pick him up on Monday and the next week, she drops him off at school and you pick him up. It’s fairly simple concept. He’s used to seeing you both the same amount of time now so it won’t be a big change. This needs to be specific because I can tell you that if it’s not, something will prevent the negotiations from happening. If she can not pick him up then you could pick him up every day and she can get him from your home after work. This way would actually be better for you because then you would still see him on her week. The whole point is that once the child starts school, the schedule will need to change and if you don’t specify what that change will be, more than likely it will not get done…

The child support needs to be put into the papers too since it should not follow the guidelines for the schedule you have now.


#18

can you change child support at any time? Say if you lose your job or you get more overnights, can you change it then or is it permant. Also she is telling me that these papers are good until the divorce, then we do new ones. Is that true? or do these papers go through after the divorce?


#19

If you sign an agreement with an amount in it, that is what you pay until one of you file for modification or until the child is 18 or graduates from high school. If it is filed with NC Child Support Agency then it will follow the guidelines unless you go to court with a request to deviate. If you have an agreement that the amount will change it needs to be specific about the terms.

If you go to court over custody and child support it is court ordered. Which means no more negotiations. You follow the guidelines or have permission from the courts to deviate.
If you get more overnights and want to change the amount after that you must file for custody modification and child support modification based on changed circumstances.

You do not automatically get a new arrangement when the divorce is final. Absolute divorce has nothing to do with child support or custody. These are separate matters to the courts. The only way to get a new arrangement after you have signed agreement and are divorced is to file for custody and child support. Then you are going through this all over again. Just because you have an agreement does not mean that it will never be filed with the courts, but what happens during the separation and after with the custody sets a precedent that the courts would look at. Then it would be up to the filing party to show why it is in the child’s best interest to change the schedule that has been followed and has worked for x many months or years…

Look at it this way: You have two choices; you can work it out in an agreement that will be permanent for custody and child support until the child is 18-21 depending on school. OR you can go to mediation, go to court, BOTH spend thousands of dollars to have a judge tell you how much time the child spends with each of you and how much either of you pay in child support.

The only time child support would not be paid would be if you have equal time and make about the same amount of money. If that is not the case, then one of you will pay the other child support. You can agree to deviate from the guidelines meaning that you offer to pay so much a month in child support or neither of you pay child support. If it goes to court, the first thing you would have to do is show that you do have the child an equal amount of time regardless that it’s not overnights so that they would not automatically show your ex to have primary custody with you having no overnight visitations. As I said, as far as the court is concerned, child support is based on the number of overnights, salaries of both parents, the amount on insurance, day care, other children the parent is responsible for…
It sounds to me as though your stbx is trying to get you to sign these papers so that you will not have any way to do anything about it because she knows you do not have an attorney.

The guidelines and calculator are on the home site.

Please, please consult an attorney before you sign anything, for your own sake and your son’s.


#20

I’m not meaning to sound harsh here but it sounds like your wife is trying very hard to control and manipulate and it’s working.

With as much time as you currently have with the child I would NOT settle for less than you want. There is no reason that at 11 months old you can’t have every other weekend. You already get one overnight a week and your child is very used to having you around. I understand she feels you see the kid more but that’s jealousy talking.

Take what she has on the table and counter with what you want. She’s trying to wear you down so she can have her way and you will find this pattern will go on for the rest of your life if you aren’t careful. It’s supposed to be a negotiation.

Good luck to you.