NC mother unwilling to allow 50/50 custody

North Carolina Divorce Law Divorce and Separation Answers
1

My wife and I separated 5.5 months ago. The separation agreement she had drafted lists the reason for separation as, “because of unfortunate differences and incompatibilities which now exist between them”. I am in agreement with this reason, but we have not signed this agreement, and physical custody of our 8 and 4-year-olds is the hot topic.

She had her attorney draft it listing her with primary physical custody; only giving me overnights every other Friday and Saturday, 4p-7p two evenings per week, 1 full-week in the summer, and alternating holidays.

I have asked for her to modify that to a 50/50 physical custody plan, but she responded, “I am not willing to change to a 50/50 plan. You are spending more time with the kids with our current plan than you did before the separation. I have always spent nights with the children and have gotten them ready for school in the mornings. They need stability.”

We both worked full-time with the kids prior to separation, but, because she was able and willing to be home in the mornings and come right home after work, she spent more time with the kids than did I. There were plenty of mornings I was up and gone by 5am, and often didn’t get home until 6:30pm. There were also regular occurrences of me not getting home until after the kids were in bed. It was not an ideal weekday schedule, but it was unfortunately necessary more times than either of us wanted. Nonetheless, I was generally able to be home for dinners, baths, and bedtime. I did work a lot of weekends too, but I always made sure to get the kids where they needed to be, took them on many an outing, and maintain a great and loving relationship with them.

It took me a few months to find a housing arrangement I was comfortable with, so I agreed to temporarily go along with her idea of physical custody and even utilized the house we still jointly own for my overnights with the kids. I now have a nice home 10 minutes from my old home, where she and the kids live.

I feel I have laid enough foundation above to finally pose my question. Does my wife have the right to deny me 50/50 physical custody at this point, and aren’t I likely to be granted 50/50 physical custody if she feels she needs the courts to decide?

Everything I have read in the statutes, discussions, case-law, and so on indicates that she is in the wrong right now for denying me 50/50 joint physical custody.

2

I cannot predict the likely hood of any one outcome in court, but if you are not satisfied with the custodial plan your wife has proposed you do have the right to bring the case before a judge to decide.

3

courts usually want the parents to be involved a much as possible in the kids lives…i would leave it up to the judge to decide – especially if she don’t agree with you having more time…my husband and I had 6 weeks during the summers, every other weekend, and spliting major holidays. So you should be able to get more time to spend with your kids…hold out for as much time as you possibly can. Sometimes the ex’s try to control the situations too much.

4

I am a dad in a very similar situation. I have managed to get 50/50 during the separation by pure force of will. I would reccommend filing for a temporary custody order before the current arrangement gets established as a normal schedule. I haven’t seen, though, where the courts order a 50/50 arrangement unless both parents agree to it and demonstrate they can work together, so expect that a judge will have to decide on a primary parent. The longer you wait the more likely she will end up as primary. The judge won’t just rule on one factor, but this (I believe) is the most critical one. I am not a lawyer and my custody hearing is not until next month (so I am just hoping I am giving good advice), but because I have insisted on being as active as possible in my daughter’s life, I believe my chances are good at getting primary. I am going to go out on a limb and say that judges will make their decisions on what has already happened prior to the time of the (permanent) hearing and not what one party says they are going to do. Good luck, I feel your pain.

5

I would attempt to get as much time as you want. If you settle for less it’s near impossible to get the time back later. Do not let her get you into a routine where you don’t have the kids, the judge will see that and it will factor against you.