I recently move back to my home town where my son and his
mother live. We were never married and she physical
custody. We both have joint legal.
I have been allowing her as well as her younger child to
live in an apartment I own at a reduced rate. $800 for a
place I normally charge 1500 for. I also pay $580 in child
Since I have been back for last month I have him every
week day till 11pm and about 75% of the weekend because of
his mothers work schedule. I picked him up from school
When I mentioned to her that since I have been back I have
been taking care of my son every everyday, and I think it
would be fair if we went and changed the physical custody
to 50/50. I would still be willing to pay her child
support because I make a lot more then she does. I also
brought up that is makes no sense to wake a child up at 11
pm when I am more then willing and able to care for him in
She then got angry. As retaliation she told the school I
am no longer allowed top pick my son up at school. I have
to drive out of my way to get him at his grandmotherís
house, where I arrive at the same time or before the
Also I am having problems registering my son for
kindergarten because do not have at least 50% physical
custody. He should have been register a month ago but his
mother still has not done it. I tried but I am not allowed
I guess my questions are what are my options in this
matter? I am I available and willing to care for my child,
while she is no able to because of work. I did not want to
go to court if I did not have to. If I do go court what
are my chances of getting primary physical custody?
Nobody likes to go to court. Some people have no choice.
All you can do at this point is file for a modification of the parenting schedule based upon child's best interest.
Outline what you were doing for a month. In your pleadings, lay out the same logic that you offer. I think you have a reasonable position that if the mother is working until late at night, you should be the one caring for the child.
Also, I suggest that you look into tenancy laws and rent your property at market value, if possible. Obviously, you can't violate tenancy laws if she's in a lease with you. Unless you have a ton of cash, it's in your child's interest to build a college fund, and $800/month really would build that tremendously.
The reason why I encourage you to do this is to help the mother understand the concept of cooperation and mutual back-scratching. She seems to take for granted that you're losing $800/month in potential revenue in your decision to help out the mother of your child. But never phrase any threat as "Well, you better do this, or I'll raise rent."
Further, it doesn't seem to me that you and the mother are in the type of friendly and cooperative relationship where you really want to be in business with this person. If she's mad at you, she is in your property and can do major damage. It's far too personal. Let her find another place.
Back to court... you probably don't have enough of a case to change "custody," which requires a substantial change in circumstance to show the current "custody" is harming the child. So, you're not asking the court to modify custody. You're trying to keep "custody" the same but want to modify the parenting plan in a manner that is in the child's best interest.
Your biggest challenge is that you jumped the gun and upset the apple cart (i.e., by suggesting a different financial arrangement to the mother). If you had this schedule in place for six months, you'd likely have a slam dunk to modify the parenting schedule. Three months could even be pretty convincing. But one month is something the mother can dismiss as a very temporary arrangement. And that's your challenge. If you had waited several months and quietly planned your move, letting the mother have the best of all worlds for that short time (i.e., receiving child support and being a noncustodial parent), your upper hand would have been huge.
At this point, in approaching the court, don't worry about the kindergarten. Plenty of parents wait to the last minute, and they still get their kids into kindergarten on the first day.
The time to raise the issue of kindergarten is if your child isn't enrolled and attending the first day. Then you go to court at THAT time, ask for primary custody to ensure the child receives an education, which the mother has clearly neglected. But speculating about future problems (as you would be now) are not convincing to a court.