Working father with a stay home mother wants 50-50 phys custody

[Airborne]

I am a working father with two daughters; 12 and 11.  My wife hasn't worked for the last 9 years.  I'm looking for sharing custody 50-50.  My wife is filing for divorce.  She wants my custody to be every other weekend, some summer time, and alternating holidays.  I leave for work as the kids get up and come back home at 5:30.  I have been active with the children's school activites, homework, volleyball leagues, and church.  My wife has been the home maker.

I told my wife I wanted the kids half the time.  I suggested that we could alternate months and I would live close by near the Jr High and the neighborhood.  She said the judge could decide between the two.

I'm wondering what my situation looks like and how I can improve my chances.  

[Giggles]

Document...document...document!!!

If you can show the court the amount of time you have with the children, your willingness to cooperate with the mother and have an adequate place for them (their own room...since they are girls they can share) near their school and the mother...then you may have a  pretty good chance.

Alternating months might be a bit of a stretch though...you may want to revise that to a weekly schedule....

[CustodyIQ]

If the mother is a competent mother, your chances of securing 50/50 are unfortunately not too good.

Absent any good reason to do otherwise, courts tend to try to keep the status quo in place for the children, as much as possible.

The status quo by your own admission is that the mother has been stay-at-home for 9 years (i.e., she's done most of the parenting from Monday to Friday) while you've been at work.

Even though you've worked just as hard in supporting the family, the judge is most likely to keep that the same (i.e., you continue to SUPPORT the family, while the mother has the majority of timeshare).

If your wife is alcoholic, violent, or mentally ill; you have a better shot.

But if you're both average (or better) parents, if your wife doesn't want a 50/50 schedule, you're going to be hard-pressed to get it.

I know I'm the bearer of bad news, but it's important to know your starting place and then work to improve it.

If you have credible evidence or testimony that shows you're the parent who helps with homework every evening, who takes the kids to extracurricular activities, who spends most of the weekend caring for them, etc; then your position improves.

The easiest way to accomplish this may be by deposing your wife.  This means you would get an attorney, who does a deposition.  At a deposition, your attorney asks your wife all sorts of questions while she is sworn.  Her testimony is admissible in court.

So some questions could be like...

"Over the past year, what percent of time would you estimate Dad has helped with homework?"

"Do you believe that Dad is violent?  Alcoholic?  Mentally ill?  Abusive?"  (getting "No" answers on all of these can serve you in the future, or to show a judge that even she admits you're completely safe for the kids)

"When is the most recent time you left the children alone with Dad?" (again, if it was only a week ago, it shows that she completely trusts you with the kids)

If you do this deposition earlier in the process, rather than later, her guard won't be as high (i.e., she won't be as educated as to what she should or shouldn't try to say).

The important thing about depositions, versus written pleadings, is that it gathers impromptu answers that must be given without consulting an attorney.

In a sense, you want her to help you build your case by admitting you've been extremely involved.

If she ends up indicating that despite your full-time work schedule, you have managed to do something close to half the parenting, you'll have an excellent chance at something close to 50/50 outcome.

Her opinion as to what's best for the kids post-separation is about as valid as your opinion.

But if evidence shows that you two have mostly shared the parenting, it would lean towards a 50/50 outcome.

FINALLY, there will be an initial set of temporary orders.  Those temporary orders will become status quo, and the final orders are based on status quo.  So... you want to try to avoid, as much as possible, temporary orders that are not close to what you want to see in a final outcome.

[mango]

It is your constitutional right to get equal rights for parenting time as the mother.
 
Remind the court of your equal rights.

Unless you are found unfit, the court can't take your right away to parent your kids, and they MUST grant shared parenting.

In Ohio, the court does not deny one parent the right over another, and they typically make the parents duke it out themself. Which for some takes years to finalize their own plan. But some folks settle on what you described, for the sake of settling. (The Weekend/Wednesday plan.)

I would suggest you type out a parenting plan that you find suitable, and "submit" to court, before the BM does. Every other week, or Wed after school- Monday a.m., every other week. That is way fair enough. Plus, HALF the summer, and rotate holidays and school breaks.

Kids need their dads, and moms often forget that.

[CustodyIQ]

I'm all in favor of presumed shared parenting when both parents are healthy.

But I see nothing in the Constitution nor in any caselaw that supports your contention.

I frankly feel that it's a disservice to advise a dad to try to argue something that has little chance of convincing a court.

There are some fathers who have recently tried to argue this, have appealed a loss, and have either been denied appeal or lost appeal.

Custody rulings are not about "fairness" or about each parent's rights.  In the current state of family law in the country, the "best interest of the child" is the strongest factor, and there are a whole set of presumptions of what that means (to the court).

[smtotwo]

actually the supreme court did rule that parents have a constitutional right to raise their chidlren.

But to get it applied in court?   GOOD LUCK WITH THAT!

[CustodyIQ]

Parents do have a constitutional right to raise their children.  You are correct.

The poster "mango" clearly stated that the constitution guarantees that fathers should have equal parenting time as mothers (and presumably vice versa).

And as far as I know, no high court nor constitutional article has ever said such thing.  Hence, attempting to argue it in a trial court would be a feel-good political statement but an abyssmal failure to have impact on a judgment.

[mango]

No, I posted "shared parenting" not equal time. Which means you have equal rights to make decisions. Time is variable situation to situation. If neither parent is found to be unfit, the court must rule on "joint or shared parenting"

Davis vs Flickenger states:
"This court fully recognizes the contributions made
by the mother as well as the father. But the best
interest of a child encompasses not only the home
environment, but also the involvement of both
parents. In today's society that fully admits the
need for parenting by both parents, each parent
should have full involvement in a child's life, where
possible and desired by the parent. When one
parent begins to cut out another parent, especially
one that has been fully involved in that child's life,
the best interest of the child is materially affected."


See some case precidents:
Davis v. Flickinger (1997), 77 Ohio St. 3d 415, 419. Cordon v. Gordon (October 19, 1987), Athens App. No. 1334
Beekman v. Beekman (1994), 96 Ohio App. 3d 783
Holm v. Smilowitz (1992), 83 Ohio App. 3d 757, at 777.
Klamforth v. Klamforth (April 9, 1996), Franklin App. No. 95 APF 10-1396
Stevens v. Stevens (February 10, 1997), Preble App. No. CA96-07-010
Grant v. Grant (July 21, 1989), Wood App. No. WD-88-29
Barton v. Dean (February 20, 1990), Madison App. No. CA89-08-013

[mango]

more...

The statement of "full involvement" in teh flickenger reading to me implys more then Wednesday and weekend visits. You may not get 50-50, but you certainly can be more involved then "weekends & wednesday".

Type up a plan and submit it.

I have full reading if you want to post your e-mail, I will forward it.