My fiancee, with whom I live, has been seperated from his
wife for 2 years and they are divorcing. He has two
children (12,13) who "live" with their biomom. We all
live in Pennsylvania.
When he first seperated, his lawyer told him that he can't
have "joint" legal custody, only joint physical custody.
We see the children everyday. We have them from after
school (3:00) until she picks them up (7 - 8 PM) every
day. They stay overnight with us one night a week
(sometimes more) and every other weekend (Friday night
until Sunday night). We provide most of their meals
(dinner every night except the two nights on our
weekend "off"), breakfast on the mornings they are at our
house and my finacee gives her lunch money for each of
them when she picks them up every night (4.00/per day).
There is no court order for how they have been doing
this. My finacee has been paying her child support (based
on the Pa guidelines) since he seperated. There is no
order for this either.
His lawyer told him that even though we have them daily
and even though we provide a good deal of their basics,
above and beyond child support, that he must still pay her
full support, despite this "joint" custody kind of thing.
This does not sound right to me. I am not sure why we
have to pay support, or at least full support, when they
seem to be with us most of their waking and active time.
The lawyer said this is because they sleep at her house.
Is this correct? What do you think?
So, let's first remember that I'm not an attorney.
Second, let's note that the information you provide is paraphrasing how your fiancee paraphrased what his attorney said.
I have never heard of joint legal custody not being an option. The explanation the attorney provided about child support seems goofy. But again, I'm reacting to your summary of your fiancee's summary of his attorney.
The best thing I could recommend is for your fiancee to document all the time the children are in his home. There's a great software product for this, which can produce impressive reports if ever needed. Look for the Optimal software on my What You Must Have
Your fiancee is in a tough spot. It's quite possible that a court ruling would reduce the frequency with which he sees the kids. Right now, he sees the kids 11 or 12 out of 14 days. A bad (but possible) court ruling could reduce it to 6 or 7 days out of 14.
On the other hand, it's quite possible that a court ruling would increase overall time the kids spend in his home but somewhat reduce the frequency (e.g., a couple more overnights weekly, but a couple less afternoons weekly). It all depends upon the judge.
Lacking any other details, it sounds like the parents have worked out a parenting plan that is working. Dad is spending major quality time with the kids from after school until after dinner on every school day. He's spending every alternate weekend with the kids. In truth, Dad probably has MORE quality time with the kids than Mom with the schedule you outlined.
If I were in his shoes, I'd want to have a very very good reason to upset that apple cart. The kids don't spend as many overnights in his home as Mom? I don't know if that's a good enough reason for me.
With regard to child support, he may want to have another attorney run the numbers. Obviously, the mother has the children in her home for more total hours (due to the overnights). Simply a matter of factual review. If he knows her salary and his own salary, he should be able to get an idea of what a court would order-- there's not much room for flexibility there.
Dad must think about the following:
- Is the current level of cooperation and flexibility in co-parenting likely to continue for the next five years? If so, he would be an idiot to start litigating; as that would destroy what is working.
- Have the parents been able to work out vacation and holiday arrangements? If so, it's another reason to avoid litigation. The parents are cooperating.
- Would the cost of litigation outweigh the savings on child support? Let's say the father can save $100 per month if he drags the whole thing to court. He'll save $6,000 in five years. Taking it to court will cost thousands in actual dollars, and it will create adversarial tension between the parents. Is it worth it?
In the meantime, the father should be protecting his future position by documenting actual caretaking. If he fails to document it in a credible manner, then it's going to be he-said-she-said if either parent ever chooses to litigate. However, if he can show (e.g., via the OPTIMAL software I previously mentioned) that he has done most of the real caretaking during the week, he'll stand as best a chance as possible to either keep the status quo or increase his custodial timeshare.
Similarly, protecting himself, he should be writing "For supporting the kids" or "For child support" on every check he sends. He should never give cash. He needs to be able to prove, in the future, that he has paid all of this child support. Some parents get screwed because the court will make retroactive orders for child support, and they suddenly owe thousands of dollars with no proof that they previously paid it.