general custody question

[highlonesome]

I have a question too general for socrateaser that I'm hoping somone can help me with.  First off for background, I live in NY state have one three yo daughter and am very solidly a 50% caretaker.  Still married but storm on the near horizon....

I'm just wondering if a couple can work out terms of divorce on their own -- like through moderation -- is it possible to have a divorce decree wherein neither parent has a custody designation?  By that I mean, can we divorce without asking the state to designate one of us to be the primary custodian?  

I'm thinking a lot lately about divorce strategy and my top priorities are to remain a meaningful parent, a true member of my own family, and to not somehow become part of the child support enforcement machine -- which I believe is automatic in my state.  So in short my strategy would be to ask stbx to work this out on our own, but if threatened with losing status quo, I'll resort to a court battle.  I think she might shy away from that because I have three pages of documentation of abusive and crazy behavior -- some involving our daughter -- to present.  I know the odds are still in her favor, but I think she may still want to avoid that situation and at this point I think she doesn't understand just how much in her favor the odds are.  Also, we have a close friend who's been going through a custody battle with her ex and it hasn[t been as much of a one sided battle as one might expect.  The stories of all the psych testing and all I think may also have her a little uneasy about a court battle.  Also, what sort of CS arrangement would this result in?

Any insight will be greeatly appreciated.  Thanks and good luck to all here....society at large has no inkling of the pain and hardship you go through.

[MKx2]

I'm not familiar with New York State laws, however by doing a search at this site using "New York" I did find this:

CHILD CUSTODY: Joint or sole child custody is to be determined according to the best interests of the child. Neither parent is entitled to a preference. There are no factors specified in the statute. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 13, Section 240 and New York Case Law].

When a minor child is involved, I believe that the issue must be placed before the courts concerning custody.  

I think your best bet would be to ask for at MINIMUM 50/50 primary custody.  Personally if it was me, I'd shoot for the moon and ask fror primary physical placement and back down to 50/50.

I don't know if you realize how dangerous it is to even entertain no court order for physical placement.  You'll set yourself up for a lifetime of court battles.  Your wife may cooperate with your ideas initially, but trust me - it can and will get very ugly when she is becomes aware of her "rights" as opposed to yours ... family court is mommy-biased for the most part.

I hope you can work things out so you don't have to go through this horrendous battle of divorce and custody.  To say the least, it can break you emotionally and physically - not to mention financially.

Good luck!

[Indigo Mom]

If BOTH parents feel the same as you.  My daughters father and I split when she was just a teeny infant.  I took this case to court as he was threatening to take her out of state.  I filed the paternity action (we were never married) and the Judge asked if we'd like to come to an agreement on our own or let her do the deciding.  She left the courtroom for about 15 minutes while we talked.  We did come up with an agreement.

Now.  The problem comes when the other parent realizes just how "profitable" giving birth to this child can be.  More problems come when lawyers, special advocates, Judges, evaluators get involved.  The BEST thing would be for the two of you to work it out...as these people mentioned above tend to wreak havoc on our lives.  The court system isn't here to "help" families, it's here to destroy.  After all, it's very profitable for the state if parents are fighting.

I do have a question or two for you.  If you have 3 pages of documentation of her "abusive and crazy" behavior, is that directed towards you or the child?  Abusive and crazy, to me, says you're in for a long battle.  Abusive and crazy, to me, says "lock and load", buddy.....don't be so quick to play the nice guy.  If she's really a nutcase, don't you think you have the obligation to protect your child from that?

You seem naive when it comes to custody.  Naive gets your paychecks garnished and turns you into an every other weekend father, barely making ends meet.  

Working things out between the two of you "is" the best thing....but don't fool yourself into thinking it will work.  Sorry to be the bearer of negative news....I've seen too many people think things are great, then they end up on the shit end of the stick.  

[Brent]

MKx2 said this to you:

>I don't know if you realize how dangerous it is to even
>entertain no court order for physical placement. You'll
>set yourself up for a lifetime of court battles. Your wife
>may cooperate with your ideas initially, but trust me - it
>can and will get very ugly when she is becomes aware
>of her "rights" as opposed to yours ... family court is
>mommy-biased for the most part.

This is so true- please listen to what she's saying. She summed it up perfectly. Going without a court order is a disaster waiting to happen.

Unless you relish the idea of spending the next 15 years paying attorneys and stressing out daily over the next "issue", get a court order.
 
 
>I think she doesn't understand just how much in her
>favor the odds are.  

Don't worry, her lawyer will explain it to her. What do you think will happen then?

Seriously, listen to MKx2 and get a court order.

[tulip]

I believe, for the most part, courts would rather have the couple work things out rather than deciding for them. Many judges will order that you go to mediation before they will even have a trial. If you can come to an agreement regarding custody, that's great--just make sure it is very detailed and becomes a court order, not just a verbal agreement.

From what I have seen personally, joint custody will not be awarded until the court believes that you can jointly parent the child cooperatively. While I was in court with my dh, I watch a divorcing couple come in with no atty's (they can't afford attys, and are trying to get along) and an agreement for custody and support and just asked the judge to order it the way they had agreed. The judge said she could not award joint custody without knowing more about the family. They want to make sure you are not going to back in court six months (or in our case two-weeks later) because you can't get along.

My dh when he got divorced hired a very cheap atty because it seemed like they would be able to work things out peacefully, and he just needed someone to do the paperwork. Well, it turned out to not be that way, and he lost his kids.

You get yourself a GOOD atty, file for temporary sole physical custody, while things are being worked through. In your motion, outline parenting time schedule that is fair. One parent can have custody if time is split 50/50. Document everything, but don't bring that all up unless you really have to. If you want 50/50 custody, you need to convince a judge that you both can work together.

[NJDad]

Agent Smith, I mean Brent, is right on the money.

What sounds all nice-nice and hip today will end up as a horrifying life-long experience. It will be quite awful right up until emancipation and then you will rue the day you ever thought of it.

Even if both you and your Ex are cool with it, the in-laws, friends and most importantly second spouses always have to put their two cents into everything and muck things up.

I know you want to have a nice arrangement for the sake of everyone, but this is not the arena to do it in. If it is in writing, the mis-interpretations of what's what will deminish considerably.

Best wishes,
W

[highlonesome]

Thanks for all the input here.  Well maybe what I need to be asking is -- is it possible to have a written custody order stating that both parents have equal shared custody.  So by that I mean, neither one of us would be declared the primary custodian.  I am very concerned about becoming a part of the CS enforcement machine.  Not because I don'w want to support my daughter and I am willing to accept that this could mean supporting an ex as well.  I just see the CS enforcement system as a way in which the inequality of parental involvement is most created.

I just want to be able to hash out a plan for CS that will not end up ensuring that my daughter collectively spends 40 or 50% of her childhood living under financial hardship.  It seems that either gaining equal or primary custody is the only way for me to do this.

Any imnput based on this?  Please keep in mind I live in NY state.

[NJDad]

Don't be naive.

You mentioned that you two are still together but the storm is on the horizon... Just wait until the storm hits and then you will see the process take a life of its own.

If you and your Soon-to-be Ex are going to have a stormy separation, then all bets are off. There will be no such thing as a Joint Parenting agreement as you envision. When you separate, the only things that matter are children and finances... you're out! She'll have the house, most everything you left in the house and the kids. She'll need the cash to support her and the children's lifestyle. As soon as she talks to her attorney and finds out she can get 50-63% of all of your income and half of your joint marital assets, you're hosed. I don't care what you want, this is reality. Only a handful of divorces are 'nice' ones and you won't be starting off on the right foot.

If you are just in the planning phase, then there are some books out there that help you prepare for this, both financially, emotionally and family wise. Mine came up suddenly and I've been playing catch-up the whole time. Now's the time to talk to an attorney. Get a good one and win the first time. If there are others in your area, talk to them - a free initial consultation. Then your spouse can't use them because they saw you first.

All of your assets will be on the table, unless you disperse them a several years ahead of your separation. Your kids, once you split, will default to the mother 90% of the time. She does not have to do anything with anything, you have to do all of the work. I work in Jersey City, many co-workers live in New York and they say how backwards that state is for Father's rights.

If my Ex didn't have BPD, we would have been together today but since she did, this just magnified her vindictive behavior to the point where she was out to destroy me. In the process, she is destroying the kids because they were just tools to use to get me. If your spouse is controlling, spiteful or holds grudges, then God help you.

Sometimes its cheaper to keep her. Not words you want to hear, but after you separate you will hear many of your friends say it.


W

[Peanutsdad]

Amen NJdad,

My ex also is BPD and vindictive as hell. She has gone even further around the bend since I got custody and her behavior is even wilder and more violent.

Lets put it this way, she has a solid track record of psych admissions, suicide attempts, mult. arrests for DV and she STILL is not under supervised visitation.

If your stbx is exhibiting any kind of crazy or violent or angry behavior now,, you aint seen nothing yet.

[NJDad]

Sorry Peanutsdad,

Living through it, I wouldn't wish that on anybody. What kind of state doesn't supervise someone like that, at least for a while?

I'm trying to get opinions on how I will fare on my Motion for Residential Custody. I wrote a posting yesterday in the Custody Issues section asking for comments on my case. Would you be able to review it?

I would greatly appreciate it.

Thanks,
W