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Married father still living with mother; can't understand why mother won't agree to joint custody

Your Question:
I have two problems I am trying to work through regarding custody.

The first is being granted joint physical custody in the eyes of the law but not necessarily expecting 50% of their time spent with me. My soon to be ex wife is fighting this and does not want to agree to joint physical custody even if we are able to agree to a "visitation" schedule that would not have the kids with me one week and with her the next week, e.g., 50/50.

Do you know why she would not agree to joint physical custody? Also, I am willing to pay full CS so I'm not trying to get out of anything here. Like I said, I do not expect to have them 50% of the time although I would like that. What I want is something like a 60/40 split, which she is not in favor of either but that is part of my second problem.

My second problem is visitation in general. I am proposing every other weekend, every Thursday night, and alternating Wednesday nights during weeks that I don\'t have them that next weekend. I think over a year this is about a 60/40 split.

The big issue my soon to be ex is having (or so she says) is with the mid week overnights. She does not want the kids away from her during the week in particular when they are in school.

Can you point to any success stories that I can some how use to get her to believe that mid week overnights during the school year can work?

Without mid week overnights all she is willing to give me is every other weekend and a mid week dinner. I really think the mid-week overnights during the school year can work. We will be in the same town; I have flexibility in my schedule to see them off to school the next morning and to be there for them when they are through with after school care.

Also, am I wrong to go in looking for 60/40 or should I go directly after 50/50, which I donít think I can support but if I start at 60/40 I would hate to have to go down from there.

My kids are 6 and 8 and very well adjusted. I have deep and meaningful relationships with both of them. It is really a shame that their mom is essentially trying to block me from near equal time. This concept just blows my mind.


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My Answer:

Thanks for writing. I asked you to give some additional details (not posted), and you gave me a very thorough understanding of your current situation and the current parenting arrangment. That was very helpful to me.

You're currently living with your wife and children in the same house. You laid out that your wife has done the majority of the parenting while you worked, but that you have still been significantly involved in their care on a nearly daily basis. You also noted that you predominantly care for them a couple evenings per week and much of the weekend.

First, in answer to your question about why your wife doesn't want joint physical custody, it's because she wants control. If she receives sole physical custody, she will have much more control over the children. This is the only reason why a parent would refuse to agree to joint physical custody in scenarios where the other parent is not a threat.

If you're not a threat to your children, then you can offer no evidence, reason, or rationale that will make your wife change her mind... her emotions are driving her attitude, and you can't influence that. You are heading to court, in attempt to secure joint physical custody. I strongly encourage you to prepare for that path. I have never heard of a case where a parent wanting sole physical custody suddenly changes his/her mind during mediation.

In preparation for court on June 20, there are many important things you should be doing immediately. Do as many of the following as possible:

  • Spend more time with the kids, and keep a log of the time you spend with the kids (e.g., a little notebook in which you write the date and a single sentence of start/end time doing what activity with them). Back-date the log accurately as best you're able from your memory (i.e., you should be able to go back at least 2 weeks from memory). From now on, if you have the opportunity to go to work late or come home early, take the opportunity to spend it with your kids. If you have any hobbies that take you away from the house, stop doing those hobbies and spend time with the kids.

  • Improve your reading and homework relationship with the kids. You described a bit of difficulty in those areas. You need to work hard to change that immediately... you're going to have to do it in your future separate home, and you don't want it to be used against you on the mid-week issues. If you find yourself scratching your head on this one, then I would recommend the book "Breakthrough Parenting" by Major. There's a link to it on my Resources page.

  • If your wife starts getting very adversarial and increasingly confrontational with you, start carrying around a micro-cassette recorder in the house. Many fathers, myself included, start the child custody proceedings by sitting in a jail cell on a false allegation of violence... and it's an uphill battle from there. If you have a microcassette recorder in your pocket at all times, at any explosive moment, you can whip it out, start recording, and yell, "I'm recording this." The recording could save your behind.

  • The summer home is a big problem for you. Note my strong recommendation to get increasingly involved with the kids. If the kids and mom take off for the summer, and if a court hearing occurs during that time or shortly thereafter, you will not have been seeing the kids on a daily basis. Think about your options on this one, but I strongly recommend that you figure out a way to stay in the same house with your kids with daily contact until the day of a court hearing on temporary child custody orders. It sounds like the court hearing may happen just before a trip to the summer home? If so, it's a moot point, so long as the date isn't continued (i.e., held over for another day).

  • When you're alone in the house, videotape all things of value in the home with the tape running from start to finish (i.e., don't start/stop the tape). At the beginning of the tape, videotape a newspaper's front page and zoom in on the date to prove when you shot it. Put the videotape in a safe place (e.g., at your place of work). If you get ordered out of the house, you'll want to protect your interest in community property. That videotape would be evidence if valuable possessions start to disappear, and your wife claims they were sold or broken years prior.

As to what you're thinking for a custodial schedule, I think you should start with something approaching 50/50. Given the current parenting schedule you outlined in the same home, I would suggest that every Tuesday and every Thursday be an overnight in your home, with you taking them to school the next morning. I would suggest that every Saturday be with you (e.g., 9am to 5pm, or whatever hours are needed), since their mom works on Saturdays. I would suggest also you have them alternating weekends from Friday afternoon/evening until Monday drop-off at school. The solitary Saturdays can be your throw-away, if necessary during negotiations.

By the time June 20 comes around, your attorney can produce your personal log as an exhibit, along with your testimony supporting the orders you're seeking the court regarding your parenting schedule. There is common belief that the best interest of the children is often supported by maintaining the status quo and disrupting as little as possible. If your log demonstrates just how active you were with these kids, I think you'd have a reasonable chance at getting court orders for what I outlined.

Based upon the parenting schedule, the court will rule it as sole or joint physical custody. At that point, it's largely going to be the personal discretion of your particular judge. It's important for your attorney to be familiar with this judge.

Good luck. Please let me know how it goes.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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