Chances for 50/50 Parenting Plan

[gas]

I have requested the court to modify existing parenting plan to 50/50 with kids to have equal time with both parents.  San Diego court will be hearing our case June 15.

1.  Ex wife and I live in San Diego, homes are 5 blocks apart, about a 5 min. walk or 2 minute drive.  We are both 5 minutes from pre-school, kindergarten, doctors, everything else in our sons' "world".

2.  We have two sons, ages 4 and 6 yrs., joint custody with Mom at 70% and I am at 30%.  

3.  Both of us are very loving, caring, responsible parents with a good co-parenting relationship.  There are no real "negatives" that could be attached to our parenting capabilities or character.

4.  I have made significant sacrifices, personally and financially so that I could maximize my time with our sons.  I have rejected career opportunities that would double my income because it would require extensive business travel or relocation.

5.  I have detailed visitation logs to support my heavy involvement with my sons, including doctor appointments, volunteering at school, taking to/from school, speech therapy, attending t-ball games, swim lessons, etc.  Logs demonstrate I have upheld my 30% visitation.

6.  Both sons are very well adjusted, happy, healthy with close bonds to both parents.

7.  Mother and I both travel on business but have always had the flexibility to work it around when we don't have the boys.  1-2 days/week on average is our business travel (each).

8.  My atty advised me to request a parenting plan that has Mother with the boys Monday/Tuesday, I would have them Wed/Thursday and we would alternate every w/e (Fri-Sunday) for a 50/50 split.  Atty mentioned that this schedule is what the court has been  recommending when granting 50/50 custody

9.  My work could accomodate the above plan but also can accomodate a "week on/week off" if that is what the court prefers.  I have read that in the case of small children courts typically do not like the kids going an entire week without seeing the other parent.

10.  San Diego Courts assign a mediator that interviews both parents for about 20 minutes each, then prepares a recommendation for the judge.  The judge almost always rubber stamps the recommendation.

11. These are the pertinent facts, I would be interested in hearing your take on what my chances are for getting the 50/50....and if not 50/50 what the outcome is most likely to be.  Also anything specific I should provide the mediator (in addition to the detailed logs) that would help.

[socrateaser]

Before answering, please post the text of the motion/petition submitted to the court by your attorney so that I can read the grounds and authorities under which your attorney believes the court may permit your motion.

Based on your facts, so far, I am thinking that your chances are 0%.

[gas]

Petition follows, Petitioner=Mother

Child Custody/Visitation/Child Care

1.  The last mediation between the parties was on March 15, 2002, two years ago.  The children have grown and as such, a change in circumstances warrants a minor change to our current parenting plan.  The change will vastly improve the children's lifestyle, social exposure and educational growth and maximize time with both parents.  

2.  I am requesting this change to our current parenting plan for the reasons set forth below.
     
    a.  Petitioner's job requires extensive travel out of town on a weekly or nearly weekly basis.
   
    b.  I am working in a position that allows flexibility in my schedule and am requesting a new parenting plan to be implemented that allows me to provide care to the children instead of the Petitioner's nanny and increased weeknight visitation.

    c.  I am concerned about my youngest son (DOB: 4/24/00) lack of exposure to both scholastic and social situations which I believe contributed to his slow progression in speech.  He was recently diagnosed though his school as having a speech and language skills delay.  See attached Screening Report herwith as Exhibit A.

    d.  Both sons are isolated  at home in the care of the Petioner's nanny for extensive periods of time thoughout the day.  It is not conducive to remain at home watching video's or simply playing which I could be with them or they could be in a structured environment at school through the after school program.  See nanny time logs herwith as Exhibit B.

    e.  I am proposing the following parenting schedule:  Mondays and Tuesdays of every week with the children are with their Mother.  Wednesdays and Thursdays of every week the children are with me and then Friday Saturday and Sunday is alternated between the parents.

    f.  This schedule will work outstanding for the children for two reasons:  First, I would provide a better learning and social environment for the children or in the alternative, the children would attend an after school program providing them greater exposure to structure and the learning environment.  Secondly, Petitioner would be less burdened with them during her harried work week and not need to rely on the nanny to provide child care five days per week.

3.  I am proposing this change and that the mediator address the numerous days off from school for which I am not permitted to spend the extra time when I am available, i.e., teacher workdays, school holidays, school breaks-all to be split 50/50.  I am not requesting a major change in the children's daily routine but I am confident the change I am proposing will greatly benefit the children in many ways.

[Kitty C.]

Per #9:

For lack of better words, that's BS.  '.........in the case of small children courts typically do not like the kids going an entire week without seeing the other parent.'  think about it.  Most 'standard visitation orders' have the kids going almost TWO weeks before seeing the other parent, so if you're trying for 50/50, what you want to keep in the forefront is how many times the kids have to go back and forth between homes and still be able to maintain constant and continuous contact with both parents.  One week on, one week off is the best case scenario, because there is only ONE exchange every week, not 2-3 like the first plan you mention.

If you ever have a judge or atty. who tries to pull that crap like in #9 on you, ask them for an explanation of standard visitation and if #9 is the case why is the standard (which is ordered SO frequently) so different.  And leave them talking to themselves...........

[gas]

Kitty, thanks for the input.  I am fine with week on, week off or any combination thereof.  The much larger issue at hand is whether court will grant two boys ages 4 and 6 equal time with both parents.  I have been told San Diego courts are steadfast in the belief that frequent contact is great with both parents but majority of overnights should be with one parent for stability...instead of liviing in "two homes".  ...Especially when the children are doing extremely well in a 70/30 environment, no problems, parents are responsible, etc.   Just what I've heard from others that have been thru the ringer in similar cases in this area of California.

[socrateaser]

That was helpful. Essentially, your attorney is arguing that because the children are older, that this is a substantial change in circumstances affecting their best interests, and therefore, that the court should modify custody in your favor.

My second opinion on this is, that unless your attorney knows from past experience, that the judge who will hear your motion is highly likely to rule in your favor, that you are wasting your money and that your request will be denied, because your facts are not sufficient to demonstrate a substantial change.

But, that's my opinion. The judge may decide differently.

[gas]

Socrateaser,  thanks for weighing in.  It's a sad commentary in this world of worthless dead-beat Dads that a court wouldn't max time of two young boys with both parents.

[mango]

Can you request extra time in summers, to make up for the school year. Thus giving them a consistnet environment for school, but more time with you for summers.

Will your ex work with you on any of this, or will it get ugly.

[gas]

Ex will not work with me on any of this as she already feels shortchanged by "only" seeing the kids on the existing 70% plan.  Currently all summers and holidays are split.  This is already ugly in the sense that I have to go to court to get ANY increased time.  She places a priority of her needs (to be with children ALL the time) vs. their needs (boys really DO need their Dads).  Now in court (actually FCS) hands to make the call.  Why on earth a court wouldn't want two boys to max time with BOTH loving parents' is something I'll never comprehend.

[gas]

Significant change in circumstances may not apply per below-

California Marital Settlements: October 2001 Summary

Legal Developments

Stipulated Custody Orders Modifiable Unless Clearly Intended as Final

On July 30, 2001, the California Supreme Court held in Montenegro v. Diaz (2001) 26 Cal.4th 249, 109 Cal.Rptr.2d 575, that "a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication that the parties intended such a result." In the absence of such an indication of finality, a stipulated custody order may be interpreted as only temporary in effect, and therefore may be modified based on the child(ren)'s best interests, WITHOUT SHOWING A CHANGE IN CIRCUMSTANCES. The commentary in the Custody section of the program has been updated to reflect this ruling, and a new question has been added that allows you to insert a clause into the document specifying whether or not the custody provisions are intended to be a final custody determination. Qs 467, 470, 472 (new question), 475