How does a judge decide custody when all the factors to be considered seem equal?

[Anonymous]

Anonymous wrote:

Anonymous wrote:Looking at the entirety of the law, it sounds like the judge can order joint custody, and then the parents can agree to it.

I would think that if the judge orders joint, and one parent refuses, the other parent should get sole legal custody. But I am not a judge.

I would think that a mother asking for sole custody, who is offered a choice between joint and none, would become amenable to joint custody.

What is her basis for asking for a change?

Is there a current custody agreement or is it informal since there was no divorce.

There was no custody agreement prior to the mother filing earlier this year. Now there is a status quo/order of restraint that the parents can't change the schedule until a final order.

The mother filed a petition due to her increasing unhappiness with the coparenting situation after he started a new relationship and introduced the child to his new girlfriend without the mother's permission as well as a frustratingly steep drop in communication between the parents that coincided with the new relationship. The mother feels very strongly that it is best for the child that they have an amicable and close coparenting relationship with a large amount of flexibility, frequent contact between the two parents, and spending time together for the child's sake. The father disagrees and decided to move to a more parenting parallel style with only necessary communication about scheduling, major health/education decisions, etc, and wants to keep communication to text, email, or parenting app only. It all came to a head during the week of the child's birthday when he decided to throw his own birthday party for the child instead of attending the one the mother planned as he had in years past. The mother filed the petition later that week in hopes that it would spur the father to communicate more with her and have a sit down conversation with her.

Translation - she is using the child as a pawn to try to maintain/rekindle her relationship with the father. That's not great.

[Anonymous]

Anonymous wrote:Here are some examples of the conflicting coparenting philosophies between the parents.

Mom thinks she should be able to take the child to birthdays, family events, etc during Dad’s parenting time if Dad is working and child would otherwise be spending time with other family, Dad’s girlfriend, at preschool, or other play dates etc arranged by Dad. Dad thinks that Mom should provide the information about the event and Dad can choose to facilitate the child’s attendance or decline the child attending.

Mom thinks she should have right of first refusal so that any time that the child is not with Dad she should be offered the time. This would mean the child transitioning between households several times a week due to Dad’s slightly unconventional work schedule making him unavailable for preschool pickup. Mom thinks it’s unfair that the girlfriend (who is now living with Dad and child) or the Dad’s parent does pickup when Mom is available and would love the extra time. Dad thinks the back and forth would be too disruptive to everyone.

Mom thinks that Mom, Dad, and girlfriend should all spend time together occasionally with the child to show that everyone is amicable and respectful. The child has requested this to Mom. Dad is not interested and insists that he only has a duty to be civil and polite during any brief face to face interactions. He continues to say no to these requests.

In each of these scenarios, in my opinion, Dad is right. He could be a little more flexible in some respects, but Mom is completely out of line (particularly with respect to them all spending time together). She needs to adjust her expectations.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Looking at the entirety of the law, it sounds like the judge can order joint custody, and then the parents can agree to it.

I would think that if the judge orders joint, and one parent refuses, the other parent should get sole legal custody. But I am not a judge.

I would think that a mother asking for sole custody, who is offered a choice between joint and none, would become amenable to joint custody.

What is her basis for asking for a change?

Is there a current custody agreement or is it informal since there was no divorce.

There was no custody agreement prior to the mother filing earlier this year. Now there is a status quo/order of restraint that the parents can't change the schedule until a final order.

The mother filed a petition due to her increasing unhappiness with the coparenting situation after he started a new relationship and introduced the child to his new girlfriend without the mother's permission as well as a frustratingly steep drop in communication between the parents that coincided with the new relationship. The mother feels very strongly that it is best for the child that they have an amicable and close coparenting relationship with a large amount of flexibility, frequent contact between the two parents, and spending time together for the child's sake. The father disagrees and decided to move to a more parenting parallel style with only necessary communication about scheduling, major health/education decisions, etc, and wants to keep communication to text, email, or parenting app only. It all came to a head during the week of the child's birthday when he decided to throw his own birthday party for the child instead of attending the one the mother planned as he had in years past. The mother filed the petition later that week in hopes that it would spur the father to communicate more with her and have a sit down conversation with her.

Translation - she is using the child as a pawn to try to maintain/rekindle her relationship with the father. That's not great.

She quite clearly got very threatened when the new GF came into the picture. Now using the courts in a delusional attempt to improve the coparenting relationship. People who operate like this do not have all screws present.

[Anonymous]

Anonymous wrote:Here are some examples of the conflicting coparenting philosophies between the parents.

Mom thinks she should be able to take the child to birthdays, family events, etc during Dad’s parenting time if Dad is working and child would otherwise be spending time with other family, Dad’s girlfriend, at preschool, or other play dates etc arranged by Dad. Dad thinks that Mom should provide the information about the event and Dad can choose to facilitate the child’s attendance or decline the child attending.

Mom thinks she should have right of first refusal so that any time that the child is not with Dad she should be offered the time. This would mean the child transitioning between households several times a week due to Dad’s slightly unconventional work schedule making him unavailable for preschool pickup. Mom thinks it’s unfair that the girlfriend (who is now living with Dad and child) or the Dad’s parent does pickup when Mom is available and would love the extra time. Dad thinks the back and forth would be too disruptive to everyone.

Mom thinks that Mom, Dad, and girlfriend should all spend time together occasionally with the child to show that everyone is amicable and respectful. The child has requested this to Mom. Dad is not interested and insists that he only has a duty to be civil and polite during any brief face to face interactions. He continues to say no to these requests.

First point: Right of first refusal is complicated. Preschool is pretty notorious for not fitting well into the schedule of anyone other than stay at home parents. Him not being able to pick the kiddo up from preschool at 2 doesn't mean that he's not able to parent at 6 when he gets home. It's his parenting choice how to arrange pick up and drop off during his parenting time. If he is regularly leaving the kid with other people overnight or for extended periods (e.g., school closures), that is when the right of first refusal would kick in.

Overall point: What you are describing sounds like one parent who is not comfortable with the family structure changing. He is moving on. He has a new partner and is making parenting decisions without consulting her. That is a change. If he did not communicate clearly or effectively, that's on him. Her adjusting to the new reality is on her. The way to that new reality does not lead through "so I filed for sole custody on the basis of his new girlfriend picking up kid from preschool and him having a separate birthday party."

Regarding the bolded, everything is *NOT* amicable and respectful right now. The child wants that to be true, but it's not. Our job as parents is also to help our children adjust to uncomfortable realities. In this reality, he has moved on and is building a family with someone else. The move here is to help the kid adjust to this, rather than continuing to push an "amicable and respectful" narrative that does not actually exist. Amicable, respectful behavior excludes filing for sole custody in this manner, though. She is not being amicable at all.

[Anonymous]

Thank you all for your input. I guess this is where I can reveal that I am the dad. I did try to present my ex’s behavior in the most fair and balanced way possible. Her feelings are understandable and I but her behavior is not.

It is true that we coparented a certain way for a couple of years. It was mostly me just saying yes to whatever my ex wanted because I’m a naturally passive person, didn’t bother to do any of my own research and took her word when she explained what we needed to do for our child’s best outcomes, and because I was afraid that she would prevent me from seeing my daughter if I didn’t. I didn’t feel very confident as a first time dad parenting independently.

And then yes, I got into a new relationship with my now fiancée. My ex was a little too intrusive and about it from the very start and very much made it seem like she thought my relationship was her business. She would frequently ask for updates on whether my fiancée was ready to meet her and our daughter, as she was under the impression that she had the right to meet my new girlfriend before I introduced our daughter. She was very pushy about it. Then I made a few decisions, such as spending Thanksgiving with my family and my fiancée and not join my ex’s family dinner. I also decided I didn’t want to take Santa pictures with my ex and my daughter. At some point I also decided I didn’t want my ex to call me so frequently. Just reasonable boundaries, you know? Decisions like this angered my ex and she would yell and insult me. Eventually she called my partner a name and I decided then that my ex wouldn’t get the privilege of meeting my partner. So I introduced my daughter and partner without my ex’s permission and my ex went ballistic. She spent a couple of months trying to convince me to do what she wanted, then I think realized I was serious when I didn’t attend the birthday party and threw my own separate one. Then she filed.

The custody petition was clearly a tactic to try to scare me into submission. She put almost no effort into it and filed pro se. It was a standard parenting plan printed out riddled with white out and random things written in. I don’t think she expected me to lawyer up and respond but as soon as I did she turned herself into the victim saying I’m trying to take her daughter away. So then she got a lawyer.

In mediation I said I wanted joint custody and to keep 50/50 parenting time. I also said I wanted to keep communication to a parenting app. She wouldn’t agree to that. She would only do joint custody if I agreed to an extreme abuse of the right of first refusal clause to prevent my fiancée or my mom picking our daughter up and taking her to my home to get started on her afternoon/evening routine until I was off work a few hours later. I do not and have not ever hired a babysitter for childcare and do not leave my daughter overnight except for sleepovers with her beloved grandma and I’m not going to agree to a clause where she can try to exert control over my parenting time like that. So she stated she would continue pursuing sole legal custody and a parenting plan where I get every other weekend.

She is unemployed and has been for the last year. She had a good telework job until she was laid off but for some reason hasn’t made an effort to get a similar job in the same field. She was taking classes at the community college for some digital media certificate and then suddenly decided she would be a birth doula and recently said she is “done with the 9-5.” She’s not quite certified to start taking clients yet but I have no idea how she plans to support herself as a self-employed birth doula with no business or marketing savvy or handle a job that is essentially 24/7 on call. What if she gets a call in the middle of the night for a birth when she has our daughter?

Most recently I heard that she is moving in with a friend and I’m guessing it’s because she can’t afford rent anymore even with the roommates she had living there. Oh and the friend has a 13 year old son that lives there so that’s going to keep me up at night.

Any time I don’t “work with her” i.e. don’t do what she wants she threatens and manipulated, telling me that I’m going to look bad in front of the court, I’m going to mess up our daughter permanently, I won’t have a good relationship with my daughter when she’s older etc. And in the same text will pressure me again for us all to hang out like a big happy family. Previous poster had it right that things are not respectful and amicable and just because she wants to pretend they are doesn’t make it so. The delusion is mind-boggling.

So to me it is obvious who should have legal custody as she really doesn’t operate in our kid’s best interest (though she may sincerely believe that she does) and has demonstrated extremely poor decision-making over the last year. But those don’t appear to be factors the court will consider and I worry she will be able to paint a picture where I am the selfish dad who is choosing his new woman over his kid and only wants 50/50 to avoid paying child support. I can barely keep my retainer topped up, can’t afford a trial without borrowing from my 401k, and i just don’t know what to do anymore.

[Anonymous]

I don’t understand how “right of first refusal works.” So every day dad would have to check in with mom to offer her pickup from preschool until he was off work? And if she passes/“refuses” then he has to scramble to get someone else to do it?

What if he decides to cut out of work early? Then he has to reach out to his ex again to say he doesn’t need childcare?

Child is never allowed to spend an afternoon hanging out with the dad’s fiancée until he gets home, just because mom wants that time? Child has to go back and forth between houses every single day??

Sounds deranged. Anyone who wants that level of involvement and control over their ex’s life and household has major issues. Cant tell you how to prove that to the court tho.

[Anonymous]

I’m so sorry OP. Just do the best you can and listen to your lawyer. Try to find some free therapy to help. Make sure all of your emails/texts/calls with her are pristine (even the calls - she may be recording.)

[Anonymous]

Anonymous wrote:I don’t understand how “right of first refusal works.” So every day dad would have to check in with mom to offer her pickup from preschool until he was off work? And if she passes/“refuses” then he has to scramble to get someone else to do it?

What if he decides to cut out of work early? Then he has to reach out to his ex again to say he doesn’t need childcare?

Child is never allowed to spend an afternoon hanging out with the dad’s fiancée until he gets home, just because mom wants that time? Child has to go back and forth between houses every single day??

Sounds deranged. Anyone who wants that level of involvement and control over their ex’s life and household has major issues. Cant tell you how to prove that to the court tho.

Just like you explained it - with concrete details about how crazy it would be.

Right of first refusal makes some sense for very young kids but can grow really complex just like you note. The right way to do it is to specificy it doesn’t apply to relatives, and also that the length of time is significant, like 8 hrs or overnight. So it would never kick in for something so short as 2-3 hours between preschool and dad getting home.

OP sounds like your ex may be borderline. There are a lot of books out there to help you learn how to deal with them.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I don’t understand how “right of first refusal works.” So every day dad would have to check in with mom to offer her pickup from preschool until he was off work? And if she passes/“refuses” then he has to scramble to get someone else to do it?

What if he decides to cut out of work early? Then he has to reach out to his ex again to say he doesn’t need childcare?

Child is never allowed to spend an afternoon hanging out with the dad’s fiancée until he gets home, just because mom wants that time? Child has to go back and forth between houses every single day??

Sounds deranged. Anyone who wants that level of involvement and control over their ex’s life and household has major issues. Cant tell you how to prove that to the court tho.

Just like you explained it - with concrete details about how crazy it would be.

Right of first refusal makes some sense for very young kids but can grow really complex just like you note. The right way to do it is to specificy it doesn’t apply to relatives, and also that the length of time is significant, like 8 hrs or overnight. So it would never kick in for something so short as 2-3 hours between preschool and dad getting home.

OP sounds like your ex may be borderline. There are a lot of books out there to help you learn how to deal with them.

I actually think she might be a narcissist. Which is ironic because she is constantly posting on social media about how hard it is to coparent with a narcissist (I’m the narcissist, presumably).

[Anonymous]

Depends. What kind of evidence do you have?

[Anonymous]

No one can tell you what they think the court will do in this case -- because we are not sitting on the bench hearing all of the evidence being presented (or sitting in chambers reading the briefs/declarations).

But I will say this -- not all factors will be equal.

That is it. None of us have all of the information -- or a crystal ball. Talk to a family law attorney in you jurisdiction.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Looking at the entirety of the law, it sounds like the judge can order joint custody, and then the parents can agree to it.

I would think that if the judge orders joint, and one parent refuses, the other parent should get sole legal custody. But I am not a judge.

I would think that a mother asking for sole custody, who is offered a choice between joint and none, would become amenable to joint custody.

What is her basis for asking for a change?

Is there a current custody agreement or is it informal since there was no divorce.

There was no custody agreement prior to the mother filing earlier this year. Now there is a status quo/order of restraint that the parents can't change the schedule until a final order.

The mother filed a petition due to her increasing unhappiness with the coparenting situation after he started a new relationship and introduced the child to his new girlfriend without the mother's permission as well as a frustratingly steep drop in communication between the parents that coincided with the new relationship. The mother feels very strongly that it is best for the child that they have an amicable and close coparenting relationship with a large amount of flexibility, frequent contact between the two parents, and spending time together for the child's sake. The father disagrees and decided to move to a more parenting parallel style with only necessary communication about scheduling, major health/education decisions, etc, and wants to keep communication to text, email, or parenting app only. It all came to a head during the week of the child's birthday when he decided to throw his own birthday party for the child instead of attending the one the mother planned as he had in years past. The mother filed the petition later that week in hopes that it would spur the father to communicate more with her and have a sit down conversation with her.

Mmmm hmmm. Ok. I see. We have jealousy running rampant and taking priority over what is best for the child here.

What does "the mother's" lawyer think about this tactic, given the circumstances?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:If they are splitting costs including daycare 50/50, but one parent is unemployed, that seems very unfair. Why should a parent who is unemployed have to pay for half of daycare that they don't need? Even if they were working, it would be split by income in most states.

I wrote above that I would support the parent who isn't asking for the change, but then reread and realized that that parent seems to be failing to support their child.

Is that true, or are there other financial pieces I'm missing?

I realize I was not very clear.

The petitioner is the mother seeking sole legal custody and to change the 50/50 parenting time schedule. She is unemployed. The mother was willing to continue paying for half of preschool and was able to do so as she was collecting unemployment for 52 weeks. She has continued to utilize preschool during her parenting time as she was attending a certificate program in the hopes of starting a new career. Her unemployment recently ended and she is hoping to start a small business in the next few months to support her household.

The respondent who was willing to agree to joint legal custody and wishes to maintain the status quo 50/50 parenting time is the father and is employed full time and maintains health insurance for the child.

Is he paying child support? Unless her unemployment is equal to his income, or she has some other source of income, then he should be paying substantial child support.

There was no custody order or child support order prior to this case being filed. Prior to her unemployment, the two parents were making roughly the same salary and neither party felt the need for child support to be ordered. Child support will be calculated and ordered as part of the custody case.

It's pretty clear that she wants increased physical custody in order to get increased child support.

+1

Peopler here are reading right past that whole 1-yr-of-unemployment-but-hopes-to-start-her-own-WFH-business-soon stuff.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:If they are splitting costs including daycare 50/50, but one parent is unemployed, that seems very unfair. Why should a parent who is unemployed have to pay for half of daycare that they don't need? Even if they were working, it would be split by income in most states.

I wrote above that I would support the parent who isn't asking for the change, but then reread and realized that that parent seems to be failing to support their child.

Is that true, or are there other financial pieces I'm missing?

I realize I was not very clear.

The petitioner is the mother seeking sole legal custody and to change the 50/50 parenting time schedule. She is unemployed. The mother was willing to continue paying for half of preschool and was able to do so as she was collecting unemployment for 52 weeks. She has continued to utilize preschool during her parenting time as she was attending a certificate program in the hopes of starting a new career. Her unemployment recently ended and she is hoping to start a small business in the next few months to support her household.

The respondent who was willing to agree to joint legal custody and wishes to maintain the status quo 50/50 parenting time is the father and is employed full time and maintains health insurance for the child.

Is he paying child support? Unless her unemployment is equal to his income, or she has some other source of income, then he should be paying substantial child support.

There was no custody order or child support order prior to this case being filed. Prior to her unemployment, the two parents were making roughly the same salary and neither party felt the need for child support to be ordered. Child support will be calculated and ordered as part of the custody case.

It's pretty clear that she wants increased physical custody in order to get increased child support.

+1

Peopler here are reading right past that whole 1-yr-of-unemployment-but-hopes-to-start-her-own-WFH-business-soon stuff.

Yeah. I feel really bad for people like OP whose exes truly do abuse the legal system. I wish there was a way to make it all happen more efficiently & affordably.

[Anonymous]

Anonymous wrote:I don’t understand how “right of first refusal works.” So every day dad would have to check in with mom to offer her pickup from preschool until he was off work? And if she passes/“refuses” then he has to scramble to get someone else to do it?

What if he decides to cut out of work early? Then he has to reach out to his ex again to say he doesn’t need childcare?

Child is never allowed to spend an afternoon hanging out with the dad’s fiancée until he gets home, just because mom wants that time? Child has to go back and forth between houses every single day??

Sounds deranged. Anyone who wants that level of involvement and control over their ex’s life and household has major issues. Cant tell you how to prove that to the court tho.

These clauses are designed to prevent a custodial parent from hiring a babysitter when you have a parent who has a minimal amount of visitation and is available to provide childcare and would like to eke out more time with their child. Even then it often doesn’t include childcare needed while working and should have a stipulation that it only kicks in after a period of time—maybe 4 hours, anything longer than a typical work shift, or overnight. That way a parent doesn’t have to offer childcare every time they go see a movie with a friend or pop out to the store and let the child stay home with someone else or risk being held in contempt.

It’s simply not a necessary clause when parents have roughly equal parenting time and is usually used by a high-conflict parent to try to exert control over their coparent, as is happening here.

Coparents who won’t abuse this clause don’t need it in the first place. For coparents who think they need it, it will cause more conflict and stress than good.