Possibility of Judge changing Temporary Custody order in Divorce Decree?

Question

We are going through a divorce, reason for divorce is my wife had cheated on me and decided to leave. I found this out after she had moved out with our 2 sons, 16 months old and 3 year old. We have a temporary Custody Order where I have kids for 4 nights and she has for 3 nights. I want to come to an agreement and don’t want to fight her in court (its very stressful) if she agrees to this temporary arrangement as a final custody arrangement in Divorce Decree. But she wants me to give her 4 nights and I should have 3 nights and she will not come to a settlement if that demand of hers is not met. She is threatening me that she will fight in court to get full custody if I don’t agree to her demand of 4 nights. I told her we can have exact 50% she refused that too. What my question to you all is “Is it likely that Judge can change temporary custody order in Final Divorce Decree and make her the residential parent”

Reason why I am asking is I want to know a realistic picture of my Situation from your all’s experience “ Is it worth to fighting?, I had been taking care of both of my kids since she had moved out on this schedule of 4 nights a week, I work full time 4 days a week and 1 day from home, she is unemployed (her attorney had advised her to quit her job) All she wants is to be a residential parent so that she can get Child Support from me. In this Temporary custody order I am asked to $1500 to her as support and made to pay mortgage of the marital home (I live there).

Answer 1

Wow that is a tough one. Most judges do change the temporary custody order in the divorce decree. However as to if it is worth fighting--that is the tough one. It is hard to go through the cost, the time, and the strain it puts on the children. No one can answer as to if it is worth it.

As to her refusing 50-50--nothing happening. The only way she can do this is if she proves YOU are a bad father and should not have that much access. Any lawyer will tell her that and she would give it. As she was the one cheating (do you know if you live in a no-fault state such as california? if you do, ignore this), then she should be worried that in her at-fault she will be the one getting visiting rights and the kids may be assigned to you. Or definitely you getting the 4 nights, her the 3.

However it is best that she be agreeable. It makes it so much easier if both parties can come to an agreement. However you offered 50-50. She said no. I think I'd wait til it goes in front of the court once--b/c her lawyer will just about definitely tell her not to waste his time.

Mention if you are the residential parent, you will not ask for child support from her (if you can afford not to). That will be something you can use to negotiate when she starts with alamony. As to if its worth it, it all depends. How bad is the divorce going? How old are the kids? How much do you make? Will hiring lawyers for years cause a lot of financial hardship? It shouldn't take her long to realize though that as you have a job, she won't be able to pay a lawyer more than you can. However you should mention her lack of career as partly the reason why she should not be the residential parent. Were something to happen, she has no health insurance, no ability to pay for the children's needs, and in general an unemployed mother should be deemed "unfit". You don't want to go that far though, you would like to have joint custody. That makes you look good for the judge but mostly whereas you are employed, you are the only one who can actually afford the expense of a child.

Answer 2

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Answer 3

In all my experiences, (I've had 4 custody battles in the past 3 yrs)...the stay at home Mom wins as residential parent unless she is found as UNFIT...which is VERY hard to prove. The last judge (June 25th 2007) just told my ex that unless one of us were in jail for abuse of a child NIETHER of us would win full custody. She could NOT win FULL custody but I do believe the judge will award her 4 nights and you 3 nights based on my own experiences. My ex n I decided NOT to fight cuz our lawyers were taking ALL our money keeping us fighting one another. We fired our lawyers and came to an agreement saving us both thousands more dollars! I'm sure your child support can be reduced. And since you live in the house it's only fair that YOU pay for the mortgage. If you can not afford it give the house to HER. with the stipulation that SHE pay for it...I did this in our divorce. My ex could not afford it...I took over the debt and rented out the house til recently..I've sold it. good luck to all of you...divorce is hard...custody battles HURT everyone involved.

Answer 4

Child support can be based on her ability to work. I would bring that up in court. You just can't quit your job to be the parent. If you are both mentally stable there will be a joint custody order, unless she can prove otherwise. More than likely the judge will do what is best for the children not what is best for the parents. If the children are happy in their current situation then the judge will go that way.

Answer 5

She can certainly request it, but it is your responsibility to fight it. It would be interesting to see her reaction if she gets her way and you demand that the same has to hold true for her. That being said.... it's not wise to have a casual girlfriend stay the night when your kids are there with you. Kids get attached and then feel abandoned when things don't work out. However, if you eventually have a serious relationship with a woman and the two of you decide you wanted to cohabit, you should have the right to make that decision without your ex interfering from a distance. Best wishes with all this.

Answer 6

Have you talked with a lawyer? Sounds like maybe you should. If you don't want to go that route, how about this idea: One week you get them for 4 and her for 3 and then the next week you get 3 and she gets 4? That may work. If she's doing it just for child support, then you need to get a lawyer or a better one to make sure the decision is what's in the best interests of your children. Good luck.

Answer 7

Try mediation. If that doesn't work, you will have to fight it out in court. It is likely the judge will keep things they way they are or grant 50-50 in the final decree.

As far as child support, you have to pay her when the kids are with her and she has to pay you when the kids are with you. Did she forget that she is liable for support when the kids are not in her custody?

Answer 8

Damn. Hate to hear that you are going through a tough time. Judges are tricky. You can never tell what they are going to do. I would talk to my lawyer about it. I do know that if she gets more days, she gets more support so that may have something to do with the change. Just keep trying to be cordial and talk with your lawyer about the 50/50 arrangement. Hopefully she will come to her senses.

Answer 9

i have been there done that and as long as both parents are fite and wont custody he will more than likely leave it that way i have many friends that had the samw situation there also in diff states but one gets on week the other gets the next week u r ok dont give in if she gets more days she gets more money thats all if u share custody she gets nothing u both equally take care of the kids..