Modification of child custody arrangement in SA


#1

I have been out of the marital home for nearly 6 years and we have a separation agreement executed in 2010 after going through a painful mediation process. At the time, I didn’t fight hard enough for more time with my children. They were very young, the finances were uncertain, and I wasn’t clear about my ability to provide the day care needs.

As of now, we do intend on divorcing but waiting until her employment situation settles so that she can remain on my insurance. This is me being nice.

I have been able to get more time with the kids unofficially when it suits my ex-wife’s mood, but increasingly she is being more reluctant to work with me. Even when she moved in with a boyfriend 2yrs ago (which should have contractually stopped all alimony per the agreement), I continued to pay 1/2 alimony as to buy good will and see my kids more often. We didn’t alter the SA-- I just paid it.

Now I am getting fed up with her whims. I would like to seek 50% custody-- I don’t wish to modify child support (she can have the money). But as the separation agreement is a binding contract, we would have to return to mediation. I know that she will throw a huge fit and refuse, but I was wondering if I could leverage the 50% alimony payments e.g. I will keep paying, and put it in writing, but I want 50% of kids.

If she doesn’t work with me, I will cut alimony off. And divorce (e.g. bye bye fancy health insurance).

Thoughts on this strategy? Does my paying her 50% alimony for nearly two years (without being contractually obligated to) set some precedent?

My kids miss me and also want more balance.

Thank you for this valuable resource.


#2

If your separation agreement requires mediation to modify custody, and she refuses to attend mediation, you should simply file an action for child custody. However you can also try to negotiate with her using the fact that you are paying for things you aren’t obligated to pay for. However it works out, be sure your new custody agreement is in writing so there is no confusion about the new schedule.