Custody Question

[kawinut]

I am a 48 year old stay at home father. My son is seven. I work from home in CA. My ex moved out in Sept 2007. She moved close by. She has a 12 year old son from her previous marriage.  We both have attorneys as we move forward with our divorce. Unfortunately it seems to be taking longer than I would like

Her 12 year old son stays with her 5 nights a week. When she moved out, we talked extensively about it and agreed to 50/50 physical/legal custody of our son. We also agreed that in the interim time, our son could stay with her 5 nights a week so he could stay overnight with his brother and get used to the new home. Starting 6 months ago and to date I have asked that we honor our original 50/50 agreement.  Our son seemed to be happy and adjusted to the two home situation.

Her response has been that there technically was no "original" agreement and what was currently in place was the agreement since the original never took place. She is asking for this in the divorce, to remain as a 80/20 custody split. Her main reason is that she thinks it important that our son spend time with his half brother I have filed an order ahead of the divorce mediation to have the judge hear my wanting 50/50 custody

Has a precedence been set not in my favor by having our son stay with her 5 nights out of 7? Is this going to hurt me?

My thought is that I should not have to carry the burden of not seeing my son half the time because she happens to have a child from a previous marriage. I also am the stay at home Dad taking care of the usual appointments, practices and school activities for both boys. I technically interact with both of them time wise more than she does. I have heard though that the courts look or count days as where he sleeps over night. Thanks for any insight

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[SPARC Admin]

Has a precedence been set not in my favor by having our son stay with her 5 nights out of 7? Is this going to hurt me?

In general you should seek to establish a 50/50 time share- the courts may very well look at her increased time compared to yours as an indication of who is the "primary caretaker". This can be a significant factor in how custody is viewed and decided by the court.

Search: primary caretaker (http://www.deltabravo.net/cgi-bin/search.cgi?Terms=primary+caretaker&Match=1&Realm=All)

[kawinut]

I have asked her repeatedly to change it to a 50/50 custody proir to divorce mediation and the divorce being final and she refuses. Do I have any alternatives besides the order I have filed with the court? This custody hearing is not until Jan 20, 2009.  Again there is nothing in writing currently.

I also have been tenative in forcing the issue during this point in our divorce. Should I force the issue and just tell her I am changing things whether she agrees or not? Will this look bad in the eyes of the courts?

We have been seperated for 14 monthes and that is how long the current custody split has been in place. Basically as of today we both have attorneys, I filed for the divorce and had her served. Her attorney has not responded in the 30 day time span. 

[tigger]

This is just speculation on my part but it looks like she played you.  She made a verbal agreement (that doesn't hold water) to pacify you and then suggested a temporary alteration "in the child's best interest" which you swallowed hook, line and sinker because you did want what was best for the child and then she established a status quo of having primary custody.  Courts like status quo.    Sorry.