stay at home father and custody issues

[movingon2]

This is long.  I need some advice on how to proceed with a divorce.  I'm 35, married for 7.5 years.  We had a baby nearly five years ago and my wife went back to work after 3 months.  I've been the stay at home parent since. We lived in NC where my wife traveled out of town overnight for work since my son was about 2 yrs old.  Then when he was about 3, we moved to another state as a career move for her.  Our house in NC never sold and we left it empty.  We planned on returning to that area within two years so we ended up pulling the house from the market.  In fact, we moved ½ of our belongings into the NC house in Oct 2005 and the rest in April '06.  We are renting a partially furnished house now.

Well, In Jan of this year, discovered wife having affair with coworker since July '05.  She had been pregnant since Oct '05 and paternity tests indicate the baby (5 wks old now) is mine.

We tried counselling but she blamed me for affair and make many hurtful comments along the way.  

We planned on leaving here in time to enroll my son in kindergarten but wife filed for divorce after mediation stopped.  School in NC has started and my son's education is being harmed as he cannot begin K-1 here due to his age.

When we went to mediation I thought a 50/50 time split would be the best thing for the kids but have since found out this is not true.  Problem is that wife still wants to mediate, and courts here require it, but if she thinks I want anything different, she will become angry and irrational (there is a potential mental health issue here).  

That might not be so bad but she has concocted stories in the past, going so far as to call police telling them I was trying to kidnap my son (this was never discussed so I don't know why she ever thought this).  Meanwhile, she was loading him and luggage into the car while the cops were questioning me and she would not tell me where she was going.  She is now working on another big lie that is typical of people with her issues and it could cause several years worth of battling with me loosing access to the kids until straightened out.  

If my wife had not just given birth (she is also getting laid off which does not help me), it would be a simple case where I would get custody and she would get every other weekend.  Now with a new born, everything is up in the air.  

Currently, we are spending way more than we are earning in rent, a mortgage payment and car payments not to mention legal fees.  If a divorce takes 6 months via litigation, we will have drained much of our money reserves.  Wife has agreed to allow me to retain the house in NC but without the cash reserves, I will not be able to afford it (since I have been out of work for over 4 years, it will take time for me to produce enough income to afford the house and if we nearly run out of cash, I will likely not make it).

Wife has verfied income until end of Oct and she is trying to find a house to buy in the same town in NC.  If she does not close by Oct she will have to go undocumented and put 30% down (which she will not have if we litigate).  

So, if I mediate and agree to 50/50 custody and time split, stability will occur quickly and we will have a farily peaceful divorce.  Litigation will produce instability for quite some time and the judge may order our house in NC to be sold which will cause more hardship for my son and several more moves over the years until I can afford a house.

The biggest issue I see is what would a judge decide anyway considering the newborn?  I would guess 50/50 anyway.  Which case, there is no point spending all of our money and creating so many problems by litigating.

Opinions and direction please.

[micj05]

I'm sorry that you are dealing with so much right now. Divorce/seperation/break up  is never fun. You confused mie a bit in your post when you said "When we went to mediation I thought a 50/50 time split would be the best thing for the kids but have since found out this is not true. Problem is that wife still wants to mediate, and courts here require it, but if she thinks I want anything different, she will become angry and irrational....." Are you saying that you now want sole custody of both children? What happened in mediation that changed your mind?

"She is now working on another big lie that is typical of people with her issues and it could cause several years worth of battling with me loosing access to the kids until straightened out." This should be your biggest worry. If she can pull this off you're done before you start. What is she trying to pin on you?

"The biggest issue I see is what would a judge decide anyway considering the newborn? I would guess 50/50 anyway."
To be honest with you the fact that there is a newborn invovled does complicate things. Is she breastfeeding? That would make things a lot harder for you to get sole custody unless there was some documented abuse or something. Also most of the time judges frown upon having babies shuffled back and forth between homes. Usually there is some type of transition period where the child resides with one parent  and has parenting time with the other that gradually increases with the child's age. They usually won't break up the kids either. One may get the older child more frequently but I don't think that they generally would split custody.

"We planned on leaving here in time to enroll my son in kindergarten but wife filed for divorce after mediation stopped. School in NC has started and my son's education is being harmed as he cannot begin K-1 here due to his age." Sorry to tell you but I doubt that this arguement will hold any water. If your son was like 7 and hadn't entered K-1 then you would have something but to say that because the schools have different cutoff dates "my son's education is being harmed"  is taking it a bit far. That would mean that every single child in the current school district who didn't make the cutt off is going to be somehow hurt. Not likely. You would do better by researching the testing scores and the like in the district that you desire him to attend and hopefully they will be in your favor. Also now that he has missed that schools cutoff date he would still be in the same grade as he will be if he stays in his current distict or where ever he will be enrolled.

"Wife has agreed to allow me to retain the house in NC but without the cash reserves, I will not be able to afford it..." Not good. You have to be pro active in this. If you can't afford that one then you really should be comming up with a plan "B". I mean where would you live with them. How would you afford them. Are you seeking  alimony/support? How much? Even that award could get drug out FOREVER so you need to come up with alternatives.

I hope this was helpful. I'm just giving you my opinion. I was in the same boat not to long ago as a SAHM. Things were a little different because I'm a mom but if your ex has as many emotional probs as you say maybe just maybe......Oh yeah if her temper or outbursts are not documented in a way that they courts deem acceptable then that won't hold weight either. Yup, I've had to deal with that one too.