jt custody of 11.5 month old son

[Lovingdad]

I am a very proud, and loving, 33-year-old father of adorable 11 month old son. For various reasons, my wife and I are getting divorced. In case its relevant, I am the one that filed. I don't want to go into reasons and will say that regardless of the 'irreconcilable differences' (I never thought I'd use that term in my life) between my wife and I, I believe that wife loves our son as much as I do and is a good mother.

Big problem is, I want Joint Physical Custody, while my wife wants Sole Physical Custody and for me to be an 'everyother weekend' dad. I don't know if wife is just looking to maximize child support, or genuinely believes its best for the child to see his dad only two days out of every 14. I genuinely believe that a child needs both biological parents in his/her life (provided they are both good parents).

My wife is self-employed part-time at best... really hasn't worked during our relationship, much to my dismay (I have always wanted her get some sort of job, to lessen burden on me). Wife was living off alimony (from her 1st, 8+ yr, marriage) when I met her. During 18 month marriage, I have been great provider for her... loyal, expensive house, new 2004 mini-van, etc., etc.

Wife is constantly threatening that I will only see son everyother weekend, like my stepdaughter's dad. Since we will most likely end up in custody hearings in near future, I have convinced myself that I need to quit, or take an hiatus from, my job for the next few months to establish a record of being the primary caregiver to son. This seems irresponsible on one hand, but seems to be what I need to do for court purposes.

I filed a petition for equitable divorce and jt custody of child in county court last week. (I am considering modifying the initial complaint if possible to request full custody).

My present attorney says that in regard to our 'contested' custody, as long as wife, son, and I are under the same roof (marital home), mediators, conciliators, and courts won't hear a custody case (so therefore, I shouldn't go anywhere).  Attorney also says that if wife leaves, and takes child, we will  Although its tense in the marital household right now, I understand that I can just sit on the divorce action/proceeding, preventing settlement, and preventing sale of marital home, so that we all remain under the same roof, and I continue to see my son whenever I want (and am not working, of course).

1)  Is it true that custody will not be determined while both parents are under same roof?

2)  Is it true that if wife takes child out of marital home, we can file an emergency temporary custody order, which will be viewed favorable for me, since wife is removing child from marital home and dad.?

3)  How long can I delay a contended custody determination by courts, by refusing to sell marital home?

[socrateaser]

>1)  Is it true that custody will not be determined while both
>parents are under same roof?

Different rules in different jurisdictions. However, if there is a petition for divorce, and the parents still remain in the same household, there is usually no legal impediment to trying all of the issues, including custody. It may be that your attorney knows that the court calendar is backlogged and that the court will put your case at the back of the line, as long as you continue to reside in the same home as the mother and child.

>
>2)  Is it true that if wife takes child out of marital home,
>we can file an emergency temporary custody order, which will
>be viewed favorable for me, since wife is removing child from
>marital home and dad.?

There is really only one rule in a divorce. Whoever has de facto physical custody of the kids at the time they stand before the court, almost always wins whatever they request.

When there is a situation like yours, and one parent leaves with the children, the court will almost always order the returned the child to the home unless the other parent alleges mental/physical abuse. And, that frequently occurs.

So, if I were you, I would get myself a microcassette recorder, and I would carry it with me every second of the day, and if things start to get argumentative, I'd whip it out so she can see it, and then start recording. You, of course will remain calm and rational on the tape, while she will threaten you every which way.

If you do this, and you can keep your cool, then the tape will destroy her potential allegations of abuse, should they arise, and will get the kid ordered returned to the home.

And if you don't do what I suggest, then you are gonna be one unhappy camper in the near future, cause these situations almost always end up with the husband being ordered to leave, and the wife and child(ren) awarded temporary everything.

>
>3)  How long can I delay a contended custody determination by
>courts, by refusing to sell marital home?

Until she or her attorney asks the court to order the home sold and the court so orders.

In the future, identify the State where you all reside. As far as modifying your petition goes, I suggest that you leave it as is -- you will look more "reasonable" to the court than your opponent if you are asking for joint physical and legal custody.

[Lovingdad]

Chester County, Pennsylvania.  Thanks so much for help and advise.  A few more questions:

1)  Under what grounds can wife/attorney ask the court to order home sold?

2)  How likely is court to so order?

3)  If home is forced to be put on market, can I just ask a very high price, and refuse to negotiate lower?

4)  I have been writing down everything that I do for/with my son (feed, buy food for, change diaper, bath, interact with, etc.), but find that for the 9 hours that I am commuting to/from and at work Mon-Fri, my wife has a clear advantage in the "who has been the primary caretaker" question.  Will quitting my job to equal the playing field help?

[NeverGiveUp]

>>
>And if you don't do what I suggest, then you are gonna be one
>unhappy camper in the near future, cause these situations
>almost always end up with the husband being ordered to leave,
>and the wife and child(ren) awarded temporary everything.
>>


Amen! PLease, please say it again.
If you don't believe Soc perhaps I can offer an example of an unhappy camper that didn't want to spend $2K to get a servalance system placed in his home . . . . just as an add in, when they take you away at 5am, all your stuff stays with her.  And the money you pay later far exceeds the 2K.

[socrateaser]

>Chester County, Pennsylvania.  Thanks so much for help and
>advise.  A few more questions:
>
>1)  Under what grounds can wife/attorney ask the court to
>order home sold?

If there are insufficient assets to divide the parties' property equitably, then the court may order property sold in order to make division possible.

>
>2)  How likely is court to so order?

Very, if it is necessary in the interest of justice.

>
>3)  If home is forced to be put on market, can I just ask a
>very high price, and refuse to negotiate lower?

You have a fiduciary duty to your spouse, i.e., you must both act in each other's best financial interests until the divorce judgment is issued. What you are suggesting is a subterfuge that would likely result in your being sanctioned severely by the court.

If the court orders the house sold, you will be expected to try to get fair market value.

>
>4)  I have been writing down everything that I do for/with my
>son (feed, buy food for, change diaper, bath, interact with,
>etc.), but find that for the 9 hours that I am commuting
>to/from and at work Mon-Fri, my wife has a clear advantage in
>the "who has been the primary caretaker" question.  Will
>quitting my job to equal the playing field help?

It might. If you're gonna do this, do it before any temporary support orders are issued. This could backfire on you, also, because you may appear to the court as not having your children's best interests in mind. However, as long as there's no support order in place, yet, it's technically legal.

And, of course there's the little issue of how will you pay your bills?

Details!

[Lovingdad]

How will you pay your bills?

Answer:  Let's just say that myself, and my wife each have savings in the range of 6 figures.  And I've already priced out health insurance for my son and myself.

Thanks for your help.

[Lovingdad]

Socrateaser:

Thank you for your help.  Here's an update:  Word on the street TODAY is that  my STBE is under agreement to purchase a townhouse 5 minutes from current marital home.  She of course has not told me this herself.  It is feasible that my STBE could, financilly, buy the home without me.  

1)  If the news is correct, and she moves out one day while I am at work, with my son, how can I get my son back into the marital home?

2)  Can my STBE legally take our son with her if she moves out?

Thanks sacrateaser!

[socrateaser]

>1)  If the news is correct, and she moves out one day while I
>am at work, with my son, how can I get my son back into the
>marital home?

First, there should be a automatic temporary restraining order preventing either spouse from transferring, disposing, hypothocating, etc., any part of the marital estate, except for the necessities of life or in the ordinary course of business.

Buying a new home without the court's approval would probably be a violation of the restraining order.

>2)  Can my STBE legally take our son with her if she moves
>out?

If you have credible evidence that your spouse has entered into a contract to purchase real property, then you can get an emergency restraining order to prevent the children from being removed from the family home.

I would call the listing real estate broker for the property that you suspect is being purchased, and simply ask if it is being sold to your spouse. Your attorney can NICELY let the broker know of the status of your pending divorce, and tell them that if they do not reveal the information to you, voluntarily, and subsequently, the property is sold to your spouse, that you will ask the court to hold the broker and the company in contempt for acting as your spouse's agent in violating the restraining order.

Your attorney can also contact your spouse's attorney and ask for discovery on the issue. Your spouse's attorney will have you ask her about the pending transaction, and report back -- to do otherwise would be sanctionable by the court.

My advice at this point, would be to tell my attorney to contact her attorney and just lay it out: "We need to get a voluntary settlement conference going now between the parties, before this whole thing spirals out of control." Ya da Ya da Ya da.