Shared Physical Custody

Joint or shared physical custody is a form of custody where the child's time is split between each parent's home. These types of agreements usually don't split the time on a 50/50 basis, but rather percentages that will work best for the child.

This may include such arrangements as the child spending the school year with one parent and the summer vacation with the other, or weekdays with one parent and weekends with the other parent. These types of arrangements work best when both parents are able to work well together for the benefit of the child.

When there is ongoing conflict between the parents, it opens the door for continuing battles over the child or children, as highlighted by the following questions.

Will he automatically get shared custody if we live in the same town?

Miranda's Question: If I move to the same town as my kid's dad, does that give him shared custody automatically?

Brette's Answer: No.

How does a judge make the decision for shared custody?

JC's Question: Does the judge really grant that the children move from week to week to each parent's house? Shouldn't they be stable in a house? Also, would child support be ordered if there is shared custody?

Brette: It depends on the situation. The decision is always made based on what would ultimately be in the best interest of these particular children in this particular situation. Child support may or may not be ordered - check your state court web site for information.

What are good reasons for not having shared parenting?

Sabrina's Question: I am the custodial parent and he is the non-custodial parent. Right now he sees the children on a standard visitation schedule, but he is asking for 50/50. I am concerned since my children are 8 and 5. I think that 1 week on and 1 week off during the school year could be too much of a shuffle for them. What are good reasons for not having shared parenting?

Brette's Answer: There is no cut and dry answer. For some kids, it works. For others, it does not. It depends on your child's personality, the atmosphere in each home, the distance, and how organized everyone can be. If you think it's too much, then you need to put together reasons why.

Does either of your children have learning disabilities or problems? Are their grades poor? Do they have trouble sleeping? Are transitions from parent to parent difficult for them? Are there health or mental health issues? If so, I would suggest you ask your children's doctor to testify. You may need to hire a psychologist who can testify as well as perhaps a nutritionist and other medical experts. These can all be reasons that would convince a judge not to go with such an arrangement. You need to get an attorney if at all possible, who can research your state case law about this.

Is 6 months with each parent a logical custody arrangement?

Jenny's Question: Our baby is 5 months old and we agreed on joint custody. But he has brought up the situation of what would happen if he moves to another state. He wants to have her for six months and then I would have her for six months. I do not agree with not seeing my daughter for six months at a clip, and I do not want her to not see her father for six months either. He doesn't think I'm being logical about protesting this. I am confused about what I should do.

Brette's Answer: That kind of custody arrangement is generally not considered to be in the best interest of a child. This only happens in rare and unusual circumstances. You would be better served working out a parenting plan that allows both of you to see your child on a regular basis. Good luck

Would a judge approve a schedule of 2 weeks with each parent?

Kathy's Question: We are getting a divorce and considering doing a 50/50 shared parenting plan with our 2 year old daughter. We live 3 hours apart. We are considering 2 weeks with each parent, but having the family plan stipulate that she Skype with the other parent twice a week and that daily calls be allowed by the other parent. Will a judge okay this kind of schedule? We both hate the thought of going even a day without her, but we also think a week on week off schedule might be too much travel time for her.

Brette's Answer: Yes, if you both agree its best. You need to realize that you'll have to rethink it once she starts school. This will also make preschool impossible, so that's something to consider as well.

When is the best time to implement 50/50 custody?

Mandy's Question: I have a 19 month old daughter and my soon to be ex-husband is asking for 50/50 split custody when she turns 4. I think 4 is much too young. And even at 5 years she will be starting school and that will not be the best time to start shuffling her around. I do not see how 50/50 custody can work for her best interests. Do you recommend an age where a 50/50 arrangement might be best to begin?

Brette's Answer: I think it is a big jump to go from your current arrangement to 50/50 without a good reason. Usually the court will not make such a change unless there has been a change in circumstances that warrants it. 50/50 physical custody works well for some kids and some families. There's no hard and fast rule. It's possible to do it from infant up - it just depends on the circumstances.

Does 50/50 custody mean I have to split all the assets with him?

Jenna's Question: If I am forced to allow him 50/50 physical placement, do I have to sell our family home that I currently live in with our kids? Will I have to sell all of the home contents also and give him half of home and contents?

Brette's Answer: Custody has nothing to do with disposition of marital assets. They are two separate issues and are decided separately. Good luck.

Will moving out without my son hurt my chances of joint custody?

Laura's Question: My husband wants a divorce. We have a 2 month old son, who I want joint custody of. I would like to move in with a family member while the divorce is being sorted out, and leave my son with my husband until I can secure a place of my own. Is this considered child abandonment, and more importantly is this something that will hurt my chances of gaining joint custody of my son?

Brette: This will definitely impact your chances of getting custody. Judges like to go with the status quo and if your ex has residential custody, the court is most likely to leave that in place.

He wants shared custody, but I'll be breast-feeding my son.

Judy's Question: I'm 6 months pregnant, and he wants joint custody when our son is born. I'm afraid to do that since he will be working most of the time and our son will be left with a nanny (he also lives about 1 1/2hrs from me). My son will need to be returned to me at night since I will be breast feeding, but he refuses to budge. Can I get full custody w/ visitation?

Brette's Answer: It sounds like you are allowing the father of your child to strong arm you into a parenting plan that you're not comfortable with. Although courts are supposed to consider mothers and fathers equally, it is not all that common for a court to have a newborn infant live with the father.

If you are breastfeeding that pretty much seals your right to residency. Breastfeeding is important, and it will be extremely difficult for you to be successful if you are not in the same house with your son. A court would always prefer to see a child be with a parent than with a nanny, unless that parent is a danger to the child in some way.

It sounds like you need to stand up for yourself and your baby. You should make an appointment with a family law attorney who can tell you how to handle this from the beginning, including hospital visitation and birth certificate information. You also need to think about a plan that will allow him to spend time with your child in your area in small segments while you are breastfeeding, and then gradually expand to visits with him at his home when he is not working. You need to get some advice specific to your state laws and your situation, and you need someone who can help you stand up for yourself.

Topic: Shared Parenting Schedules

Lisa's Question: I am a single mom who's going through a custody battle. My son's father is a good citizen and has always had contact with our son, who is now 3 years old. I think 3 years old is too young for 50/50 joint custody. Hypothetically, if you were to represent me in court, what would be our argument that I was right?

Brette's Answer: Each custody case is different, just as each child is different. If you are adamantly against the proposed custody plan, you need to lay out for your attorney all the reasons why this would not work for your child. This can't be about what you are comfortable with or uncomfortable about. It has to only center on your child. It may be necessary to get a child psychologist involved in your case. You might want to consider going to child custody mediation. There may be a compromise that both of you could agree to, which would spare you the nastiness of a custody trial.

Can I appeal a temporary shared custody order?

Marie's Question: Can an Interim custody order be over turned or fought? I have a 4 year old son who hasn't been away from me any more than 3 days at a time. The judge granted interim access where my son stays with his father every other week. I feel this order is unreasonable and will affect the security and stability of my son, especially as his behavior is quite bad when he returns home. My lawyer said we would have to monitor and document after each visit. What can be done?

Brette's Answer: You can appeal any order but the problem is that the appeals process takes so long that you could have a permanent order by the time you get through the process. I think you should work with your attorney. Documenting is a good way to create evidence and a record of what happens. Another option is to ask for a therapist to evaluate your child and the situation and provide a recommendation.

Is a mediated joint custody agreement binding if the divorce isn't over?

Holly's Question: My ex and I agreed during mediation the we would have joint custody of our 15 year old. Now our daughter is terrified to go back to his house. The main papers haven't been signed. Only the mediation papers have been signed. Can my daughter be forced to go back to his house?

Brette's Answer: A mediation agreement is not a court order, so no. 

What can I do if split-day custody is hard on the kids?

Terri's Question: We have joint custody of our 4 year-old daughter and 10 year-old son. The judge ordered the division of the children's time as follows: I have the children from 7am to 7pm M-F and he has them 7pm to 7am M-F. We alternate weekends, holidays. Our son is in special education classes & requires extensive assistance with school work, life skills, etc. I do all homework with my son as my ex is functionally illiterate. The daily exchange of the children is getting old. They have no settling on a daily basis. They cry to stay and that's getting worse and worse. This ruling is in no one's best interest. I haven't the money for an attorney and my children and I need some settlement and continuity. Please give us advice on which way to turn.

Brette's Answer: I agree this is absolutely ridiculous. You can file for a modification and need to focus on the toll this is taking on the children in your case (yes, it's inconvenient for you, but this is about what's best for your children). My goodness, how could they possibly feel settled and calm and how could your son manage this with his challenges? The judge also needs to know your ex is illiterate - having a child with learning challenges that will be important for school nights. I wish you could afford an attorney because it would really help you. See if you can get your son's OT therapist or social worker (or any professional involved) to agree to testify about how this is harming him - that will be the most helpful thing you can do. » Return to top

Should the kids should be with me when he's unavailable?

Question: We have joint physical care of our 3 kids. The majority of the time when the kids are in his custody, they are with his mother or sister. I work for the school district so would be able to pick them every day until he gets home from work, but he won't allow it.

The kids also don't have the basic things they need at his house. He'll call demanding I send certain things from my house to furnish what they need at his house. How do I get our custody arrangement changed? I feel the kids should be with me when he's unavailable, not with someone else.

Brette's Answer: Courts usually prefer that children be with a parent rather than a caregiver, but if the caregiver is a grandmother you have a more difficult argument. If the children spend most of their time with you, then it is generally expected that you send them with clothing for the time they are with him. If you truly have 50/50 custody this should be addressed by the court to clarify the issue if you can't agree. To change the arrangement, you need to ask for a modification to the order and explain to the court all of the issues you've mentioned.

Could he get 50/50 custody if we live in 2 different counties?

Britt Asks: My ex and I are currently living in two different counties and I asked the court to grant every other weekend and a couple evenings week. He wants to have him Monday through Thursday evening (so he can avoid paying child support). I have a problem with the schedule because of it going to be two different daycares he will be attending, school later on, and it is hard for my son when he comes back from his fathers to adjust. I don't feel like he would have a stable home and environment by going between homes and schools. Do you think the court will grant him the 50/50 schedule, even though we are in different counties and he doesn't take him that much now and hasn't since we split up?

Brette's Answer: I think it's unlikely, but you need to be sure to present some evidence about how it does upset your son. Having a child in two different day cares would be very confusing and distracting and should it come down to it I'll bet you could get your pediatrician to testify to that.

Shared Physical Custody and School Issues

Topic: Shared Parenting and Starting School

Shannon's Question: I have a little girl that's almost 5 years old, and I share physical custody with her father. With our current schedule, I have her 2 nights, he 2 nights and then we would switch to 3 nights and then back to 2. She started attending pre-k that this past August and I want more of a stable schedule for her. I think us switching her back and forth isn't healthy. I would like for her to be with me Mon thru Fri since she is attending school. What are your thoughts on my situation?

Brette's Answer: I think you're right. Once children start to attend school regularly it can be disruptive to be passing them back and forth. The important thing will be to help her father realize this would be best for her, and to make it clear you are not trying to shut him out. Suggest generous weekend visitation, weeks in the summer or over school holidays and perhaps several hours one evening a week.

Can I avoid the week on/ week off schedule when school starts?

Kelli's Question: My son's father and I have been sharing custody of our 5 year old since he was 8 months old and now he wants week on/ week off.  Currently, he has his two nights a week and every other weekend. He has never utilized his right to have him for spring break, fall break, or the two weeks in the summer. When he starts school, is there a chance to make adjustments where he sees his dad every other weekend and time in the summer?  I want to avoid week on/ week off as much as possible.

Brette's Answer: It sounds like you need to either go to mediation or have a hearing to get your differences resolved. Week on/week off is hard to do when the child is in school and many judges won't agree. 

Should we change our agreement when school starts?

Jenny's Question: We have had shared parenting since my son was 7 months old. His dad is set as the "residential parent for school purposes" since he owned his own home. Currently, my son lives with me & sees his father each night from 5-8 and every other weekend. Now that my son will be starting Kindergarten, will he have to live with his father? Should this be changed?

Brette's Answer: It might make sense to get this changed because if that is what it says, then it does seem to indicate he would live with his father. And, when your son starts school, it is likely they will ask you who the custodial parent is and may ask for a copy of the order. Also, visitation every night from 5-8 is not going to work once he is in school. That's too much shuffling for a school age child.

Can he get custody increased to Mon-Fri when she starts school?

Alicia Asks: We have 50/50 split parenting where I have our daughter 4 nights 3 days and he has her 4 days 3 nights. His days are Tuesday through Friday. We live in the same town but two different school areas. I want her to go to the school in my area, but he wants her to go to his, and due to work schedules neither of us can transport her back and forth in the mornings. If we go to court does he have a chance of keeping her during the weekdays since he has her most of them now?

Brette's Answer: Yes, he has a chance to have residential custody because courts like to stay with the status quo.

Does the 50/50 split have to continue until school starts?

Michelle's Question: My ex moved an hour and a half plane flight away 2 years ago. He fought me for 50/50 child custody when he had to start paying child support. The original judge, who has been on my custody case for the past year, ruled before our trial that my ex should get our son 5 days/month, and would set that for trial. Unfortunately, he was unable to hear our final trial. The retired judge who heard our case decided on a 50/50 ruling and is making our 4 year old fly every 2 weeks to his father's house. My new lawyer says that he couldn't believe what an unfair trial I was given. When we tried to get a new hearing, the SAME biased judge got to decide that. Does my little boy have to do this for a whole year, until he starts Kindergarten? I know an appeal is out of the question, but are there any other solutions?

Brette: I agree with you that this is absurd. It's a lot to ask of a 4 year old. Unfortunately, your options are limited. Request that a law guardian be appointed for your case - it doesn't sound as though you had one. Good luck.

Our split custody ends with kindergarten. Does that include pre-K?

Dianne's Question: The final judgment states that both parents have 50/50 custody until the child starts "kindergarten"...then the Father will have residential custody. Does this "kindergarten" mean "pre-kindergarten"? This is very urgent as pre-k starts in two weeks in our county and the Father says "kindergarten is pre-kindergarten".

Brette's Answer: I'm not sure what the meaning would be in your state. You should check with your lawyer.

Can we continue the 50/50 split and have our kids go to school in 2 different states?

Lourdes' Question: Our children are 8 & 11. We are planning to move out of state and currently have joint custody with equal parenting time. Have you heard of an arrangement where the children attend one school part of the year with one parent and another school the other part of the year with the other parent or any other creative school arrangements?

Brette's Answer: Yes, I have, but it is very rare. It's particularly difficult if children are moving between states since the curriculum is not the same. I think you would be hard pressed to find a judge who would agree to something like that.

Can he keep the child out of school on the days he has custody?

Hazel's Question: Parents have joint custody. The father removed the child from kindergarten a month after his enrollment. This was against mom's wishes. He feels this school is not appropriate for his son. He has pulled his son out of school on the days he has custody. What can be done? This is a very difficult situation for the child.

Brette's Answer: He cannot do so unilaterally if you have joint legal custody. Go to court and file for a violation. Children should not miss school for parenting time - just about any court will agree with that. Ask that the court order that the child be re-enrolled at the original school. Frankly, I would also ask that custody be changed to sole after this as well.

Can he prevent me from enrolling my child in school?

Amy's Question: I have joint physical custody with my husband and we have been separated for 7 months. The custody agreement states that I have her primarily during the school year and must give 30 days' notice before moving. I gave more than 60 days' notice of the move in September and he didn't contest it. He is now trying to bar me from enrolling my child in school. Can he prevent me from enrolling my child in school?

Brette's Answer: He has no reason to prevent you enrolling your child and doing so will jeopardize his or her education. If you are unable to enroll without his agreement, then you will need to go to court to have him ordered to comply.

Who gets to decide where the child goes to school?

Alicia's Question: We have split custody of our 3 year old. I'm the primary parent, but was told since we are doing 50-50 it didn't really matter who was the primary parent. Our son will soon be starting pre-k, and I live 2 school districts over from my ex. When he starts school, which parent gets to decide what school he goes to?

Brette's Answer: If you have joint legal custody, you need to decide together. If you have legal custody, then you can make that decision. It may be time to rethink your schedule, so this is something to talk about together if possible. I would suggest you try to work this out if you can, yourselves or through mediation. If you can't agree, you will need to go back to court.

How do we resolve which school district he will go to?

Brenda's Question: My former husband and I have shared physical and legal custody of our 14 1/2 year old son. He has moved over 40 miles away from the school district my son has been in since 1st grade. He wants my son to go to another school system, but I want him to stay in the same school system. What right do I have to insist that our boy live with me and continue in the same school system (he will be starting high school)? I know my former husband and I need to work this out, but he is not willing to agree on my son staying in the same school district. I don't want to go to court.

Brette's Answer: You could suggest going to mediation if you don't want to go back to court. If not, you'll end up in court where you need to show it is in your child's best interest to remain in the district and live with you. If your school system is better than his, that is something in your favor.

How can I change schools if we have shared custody?

Sheri's Question: I have been in a shared parenting arrangement for over three years, but there are no custody papers. The kids remained in their original school and my ex takes them to school every day. My ex doesn't check the kid's planners, assist them with their homework, or communicate with the school. As a result, the principal, the kid's teacher, and I have to work around my ex through email and telephone conversations because assignments and forms sent home with the kids often go missing. I want to take full custody of my children and switch their school on the premise that I cannot continue to oversee the kid's education at a distance in spite of the diligence and hard work of professionals at my kid's current school. Is this reasonable?

Brette's Answer: If you can show that it is hard on your children, you'll have a better chance. What you're going to need to do is get the teachers and principal to come in testify for you. If they will come in and support your position, you have a very good case. You can file for custody in family court.

Can a parent pick up the child at school when it is not their day?

Ellen's Question: If the parents have joint physical and legal custody, does a parent have the right to drop off and pick up child before or after school when it is not their day?

Brette's Answer: If it violates the parenting plan, then no. You can't really expect the school to monitor this unless you give them the set schedule and even then they may say they can't be responsible. If your ex is taking your child on days that are not his, he is violating the order and you should go back to court (or to a mediator) to solve it.

Can I pick my child up from school instead of her going to daycare?

Amanda's Question: My ex-husband has our 8 year old on Monday, Wednesday, and Saturdays. But he works until 7 pm on Mondays. He wants to put her in a daycare on Mondays now instead of me watching her. Can he do this since it wasn't discussed in the mediation agreement? If I go and pick her up at school on his day could I get in trouble?

Brette's Answer: You should seek to have the agreement changed. Going and picking her up is not the right way to handle this since you will violate the agreement. Courts prefer for a child to be with a parent than with another caregiver in most instances.

Am I violating the custody agreement by seeing my child at daycare?

Lisa: I have joint custody with my ex for our son.  On the weeks our son is with his father, his father places him in daycare. The daycare has an open policy that parents can come, have a snack, read, help with homework etc. and has parents make use of this. My son has asked that I come on those weeks to review his homework. I come in, I spend 30-40 minutes reviewing his work and/or answering questions and leave quietly. My ex, however, feels this is a violation of our joint custody and is now making quite a stink at the daycare stating its "his week". What rights do I have? The daycare has stated that there has never been an incident, but because he has custody they are worried I am violating a court order or they can get in trouble. 

Brette's Answer:  Unless your order allows you access at those times or you and your ex agree to it, you don't have it.  You could go back to court to get the order modified to specify either parent can spend time with the child at day care.

Changing Custody Arrangements

Can the 50/50 arrangement be changed if nothing has changed?

Antoinette's Question: I was divorced 2 years ago and my ex and I agreed to 50/50 custody. I want to be the primary parent and do not want to do 50 /50 anymore. My ex is stable and nothing has changed. Can the agreement be modified?

Brette's Answer: You'll need to be able to show the current situation is somehow not beneficial to the kids. Your wants are not the most important consideration. The court isn't interested in changing an arrangement unless there's some evidence that it is not a good situation for the kids.

Is the custody agreement void if I temporarily have our son full time?

Justina's Question: My ex lives 25 min away from our son's daycare but recently crashed his car. Since he can't drive our son to and from daycare on his days, I take care of him most of the time until he gets a new car. Now that I have him most of the time, is that breaking the 50/50 parenting time? Is everything in the custody agreement void now?

Brette's Answer: What you've done is unofficially temporarily modified the order by agreement. That's fine to do - and the courts are happy when parents can work things like this out themselves. It does not make your order null and void though, so you do need to follow the rest of it. If you want to try to modify the order you can certainly do so, but if this is just a temporary transportation problem it is unlikely the court would change it. If it is a permanent problem then yes, it is likely the court would change the order.

Can custody be changed if he's an irresponsible parent?

Wendy's Question: I have had shared custody of my two children for a little over a year. My ex-husband refuses to give our asthmatic son his medication and refuses to send his medication back with our son. My ex also refuses to work with our son with his education. Our son was diagnosed with mental retardation. He needs to be worked with on a daily basis. He has told our son that he doesn't have to go to school or do his school-work. My ex allows our 12 year old daughter to go to high school parties and have camp out with boys. Are these grounds for me to take him back to court for full custody?

Brette's Answer: The things you mentioned would be of great concern to me if I were your children's law guardian or Guardian ad litem; particularly the refusal to send the medication or work with your son. You've got to document this though - keep a journal and see if you can get someone else to hear him saying these things.

He now wants shared custody, but it's not a good situation.

April's Question: I have had sole custody of our 8 yr. old daughter for two years. My ex is moving here next month with his girlfriend and her 2 year old son. They will be renting a 2 bedroom apartment and the children will share a room. He wants to have our daughter 50/50 effective as soon as he gets here. I expressed my discomfort in having my daughter share a room with a little boy, especially after not having lived with her father for nearly 2 years. Can I limit visits to weekends? Are there laws regarding children of blended families and of opposite sex sharing room? What are your thoughts?

Brette's Answer: Reintroductions like these should be taken gradually. It is upsetting and confusing for a child to suddenly be thrust into a situation like this. There needs to be a transition during which she is gradually introduced to her father and the son. Having a 50/50 split of custody might make sense eventually, but it's got to be something everyone moves toward slowly. I would start with everyone meeting together so she feels comfortable, and then have her spend a few hours, then an afternoon, then move to one afternoon a week, then a whole day and eventually have an overnight. Then slowly increase the overnights.

As for sharing a room, there's nothing wrong with children sharing a room. I think it might be hard for an 8 year old and a 2 year old to live in the same room 50% of the time though. That alone is not going to be a reason to deny visitation. Maybe your daughter could sleep on the couch or bring one of those blow-up beds with her? I know it's not ideal, but she might sleep better if she's not in a room with a toddler. Your ex could even buy one of those standing, folding shoji screens to divide the room - this might help a little. This is something you and your ex should try to talk about, and maybe include your daughter in the conversation after she has had the opportunity to go there a few times during the day.

Can he get joint custody if he doesn't even use his visitation?

Emily's Question: My son is six years old and up to 6 months ago he saw his father every weekend when his father decided to "walk away." He has had no contact with my son for the past six months and has cut off my child support. I have an upcoming court date for support and custody. I know he will fight me for 50/50 joint custody. Does he have a chance of that since he walked away?

Brette's Answer: A man who does not exercise his visitation has little chance of getting custody. Generally, no court will give custody to someone who has chosen to have no contact with their child for 6 months.

Can he get joint custody if he hasn't been involved in our son's life?

Brittney's Question: I was awarded sole and legal custody of my six year old son. His father went to prison before he was born due to drugs and was there until our son was almost 5. He has hardly made any attempt to have a relationship with our son. He hasn't had anything to do with our son after I confronted him about driving with my son in the car after he'd been drinking. His parents see him on holidays and that's about the only time my ex ever comes around to see him. He recently got re-married and is threatening to take me to court for joint custody. What are his chances?

Brette's Answer: Very slim. You might want to consider working out supervised visitation so that he can build a relationship with your son in a safe environment. » Return to top

Topic: The kids hate the shared parenting arrangement

Katrina's Question: I have three daughters and share joint physical custody with my ex. We verbally agreed to review the arrangement after a year. It has been over a year now and the two oldest girls cry every week when they have to go to their dad's. They say they don't like be shuffled back and forth. The relationship my oldest daughter has with her father now is gone. She stays in her room the entire time she is over at his house, or tries to go with someone else somewhere. He has a very loud/bad temper and frequently unleashes it on the oldest. The second child has witnessed this and is afraid of him now. Any advice would be greatly appreciated.

Brette's Answer: First of all, I think it is great that you are trying to make a joint custody situation work. I know how hard it can be. There are several things I would suggest. First, try to have a civil conversation alone with your ex, out of earshot of your children. Start the conversation by saying you really want this to work and are hoping you can work together. Tell him how your girls are feeling and acting. If you have any suggestions for what you both can do to make it better, offer them, but try not to turn the conversation into "here's what you're doing wrong" because then it is just a confrontation. Stress that you want to work together, that it is important to you that your duaghters spend time with him and that he have a good relationship with them.

Another thing I would suggest is talking to your girls and finding out what they think would make it better. Sometimes kids come up with surprising answers that are very workable. I would tell them that he is their father and spending time with him is not negotiable (if they know this situation is a one year trial, it's likely they will try to make it as miserable as possible). Find out what would make things easier and better for them. It is very important that you and your ex align yourselves together in agreement that visitation is happening.

I would also recommend you find a good therapist and take your children. It is very difficult to deal with a divorce and a good therapist will not only help them find ways to cope, but may also be able to offer some suggestions about how to improve the situation. Good luck.

Can shared custody be changed if my ex is verbally abusive?

Joy's Question: I have a court order for shared custody of our son with my ex-husband. My son is about 9 years old. Even though we are divorced, he is still very abusive, verbally toward me. He was the one divorced me and I want to have nothing to do with him. I want a full custody of my son. What shall I do?

Brette's Answer: The problem is between you and your ex and is not a problem with custody. You could certainly get a restraining order to keep him from being abusive towards you. It sounds like a cooling off period is needed. You could get a relative to help with custody transfers so you don't need to see each other.

Do I have to send her back to an abusive environment?

Mary's Question: We have joint physical custody of our 14 year old daughter, and she splits time between us. Her dad and new step mom are emotionally and verbally abusing her. Can I take her with me and refuse to send her back if this is happening?

Brette's Answer: No, you can't alter the visitation plan yourself. You can go back to court and seek to modify it though.

Can he get custody with his criminal background?

Gerri's Question: My husband is a convicted felon that served 18 months in prison. I suspect that he is smoking weed again, and last year I found a bag hidden in his tool box. My mother made me flush it down the toilet instead of calling the police. He is going through something again ... he recently left town to see a friend from prison. He said that if we end up in divorce, he will move away and have custody of the girls 6 months at a time. Can he do this?

Brette's Answer: It's unlikely he would get custody of your children, or extended visitation, given his record and the fact that you can testify about what you found in his possession. You and your children need to get away from his influence. It is not healthy for your kids to grow up in the midst of criminal activity. It's also very dangerous for you, since you could be charged as an accessory if you help him in any way. See an attorney and get a temporary order of custody. Good luck.

Can he get shared custody if he's in prison?

Maria's Question: My husband is currently in prison for drugs and will be eligible for parole in a couple of years. I'm really scared that when he gets out he will try to get shared custody of the kids. He has been abusive to me and has had several drug charges in the past. It would devastating if the Judge agreed to let him have shared custody, especially since he has not seen his children for six years and has never provided anything for them. Would I be able to file for sole custody of my two children?

Brette's Answer: You have nothing to worry about. No one is going to give shared custody to someone who is in prison for the next two years. You'll most likely get sole custody.

Can he get joint custody if he's gay?

Maria's Question: Would a judge issue joint custody if my ex has chosen to live the "Gay" lifestyle? I confronted him about his alcoholism and viewing porn on the internet, and he doesn't deny any of it. I allow him to see our son daily, but I worry about my son being around my ex's "partners". What should I do?

Brette's Answer: Being gay has no impact on a person's ability to parent and plays no part in a custody decision. Being an alcoholic is another matter, as is the environment the child is in.

Can the shared custody of his first child be used as a basis in our case?

Kellie's Question: I am currently considering divorce and weighing my options. My biggest concern has to do with joint custody. I have a 12 year old step-son and a 4 year old son. My step-son's custody arrangement is alternating weeks with each parent. Will my husband be able use the custody arrangement with his first child to get the same arrangement for our child?

Brette's Answer: Each child's needs are different, as are each situation. Your husband's relationship with his own child could be used as evidence to show his parenting abilities, but a court is going to make a decision based on what's in the best interest of your child, and create a schedule that works best for your child.

Topic: My son doesn't want to come home. What can I do?

Leah's Question: I've had equally shared custody of my three children for the past 3 1/2 years with my ex. About 3 months ago, I had a fight with my 16 year old son and told him he could no longer get on the computer. He decided to stay with his father after that and has not returned. His father said that he will not make him see or spend time with me. He has told all of our friends that he is going for Sole Custody because that is what our son wants. Would my ex be in contempt of court for not following the court order, even though my son wants to stay with him?

Brette's Answer: Your son's opinion is very important and a court will consider it, however, a child does need to have contact with both parents. No judge is going to ok his living there and never seeing you. His going along with this could be custodial interference. The right way to do this is to return to court and have the order changed to reflect the child's wishes, as long as that is in the child's best interest. Get an attorney and go from there. Good luck.

Topic: Shared Parenting and Mental Health Issues

Erin's Question: I have shared legal and physical custody with my son's father. I work two jobs and he's laid off right now. We worked out arrangements to have our son spend equal amounts of time with each of us; however he ran into financial difficulty and told me he couldn't afford to take our son, due to no food and non-payment of bills. He hasn't called or seen his son in two weeks and I just recently heard that he was admitted to a mental hospital for a day or so and was put under evaluation. I'm concerned for my child's well-being if he starts seeing him again. Will it be difficult to prove he's unfit and that I should have full physical custody?

Brette: You should consult with an attorney. A court is going to do what is in your child's best interest - and that usually means arranging some kind of visitation. Mental illness does not mean your child should not have a father. It's going to depend on the details and circumstances of your situation. Good luck.

Topic: Changing Shared Physical Custody Agreements

Katrina's Question: I have relinquished to a shared parenting arrangement to avoid a lengthy and expensive custody battle. According to the parenting plan, I have our daughter 4 nights one week and 5 nights on the alternate weeks. My ex-husband lost his job in late March, and is now asking to have our daughter 3 nights a week every week. This is more time than the county recommends for the non-residential parent. The current schedule will not work when she is school-age and neither will having an arrangement in which she is with me for one week and then with her dad for one week. I want her to be with me overnight during the school week. If I am designated the "residential parent for school purposes," will this ensure that she is with me overnight during the school week? I am also concerned about having to pay my ex child support. Given that he lost his job and given his career field, it is likely that I will always make more money than he.

Brette's Answer: Unless he has a good reason for asking for a change in the schedule, it's unlikely he will get it. If your daughter is doing well, a court probably would see no reason to change the schedule. I don't know the details of your situation, but you said he lost his job and if this means he could be with her all day instead of her going to daycare on her days with you, that might be something in his favor. You didn't say how old she is now, but keeping a schedule that makes sense for school will be important. If you have more time with her than he does and are the residential parent, you probably won't have to pay child support. Unfortunately I can't give you definite answers because I don't know the details of your situation and the specific laws of your jurisdiction. I would urge you to use mediation again if you can't reach an agreement.

Is two months with each parent a good idea for a toddler?

Renee's Question: If a child (2 1/2) is being shared with equal time by a mother and father and one of the parents is moving to a different state, what is the typical custody agreement for shared time? Is it possible to have a couple of months with each parent?

Brette's Answer: It's possible, but in general that would not be recommended, particularly for a child of that age. In most situations, the court will pick a residential parent and the other will have visitation.

Topic: Violation of Custody Agreement

Maliah's Question: Our shared physical custody agreement is that our son will live with me during the summer months and with my ex during the school months. Twice he has violated court orders by concealing my son, and this is still in continuance to this day. School has now been out for more than a month, and I haven't seen my son yet.

Brette's Answer: You should hire an attorney, return to court and file for a violation. Then you can seek a change in custody. Interference with custodial rights is grounds for a change in custody.

Topic: I can't call the kids when they're at their father's house

Question: My spouse and I have shared physical and legal custody. I really miss my kids when they are with their father, and I would like to call them. I know that he has a landline, but will not disclose the phone number to me. The only number I have is for his cell phone, which he won't answer. All I get is his voicemail, and my calls are never returned.

Brette's Answer: If you and your ex can't come to an agreement about this, you may need to go back to court to have your order adjusted to direct that each party shall have telephone access with the children when they are with the other parent.

Topic: Shared Parenting and New Relationships

Maria Asks: I've been divorced for four years and we have a joint custody arrangement. My ex gives me a hard time about the vacations that my child and I go on when he hears that my boyfriend of 2 year is going along. My boyfriend is a great person and very good to my daughter. She adores him. Does he have any rights not to allow my child to go with me because he does not want us all together?

Brette's Answer: Right now he has no rights when it comes to this, but he could ask a court to prevent you from taking your boyfriend if he could prove that it somehow was not healthy for your daughter to have him along. It doesn't sound like that is the situation. I would suggest trying to talk calmly and rationally with your ex and explain that having your boyfriend along is fun for everyone and that it in no way replaces your daughter's father.

Topic: Shared Parenting and Claiming the Children on Taxes

Angela's Question: If parents have shared physical custody (one week with Mom, one week with Dad), who claims the children on their taxes?

Brette's Answer: This is normally spelled out in the divorce judgment or settlement. If it isn't, it would be something you should try to work out yourselves. You could look at who would benefit most from this, or you could decide to alternate years.

Do I have to provide everything if we will be sharing custody?

Jennifer's Question: My husband and I have shared custody of our kids, but he only takes them every other weekend. When he does take them, I have to provide everything for them both of them, including formula and cereal, diapers and wipes, bottles, clothes, etc. I only get $52 dollars a month in child support (which he says is enough). Shouldn't he do more than just supply housing, and a bed for them to sleep in?

Brette's Answer: Why are you providing formula and baby food? When the children are with him, that is his responsibility. I can understand you being concerned that your son is receiving the right formula or cereal, however, it is your ex's responsibility as a parent to go buy the right things.

It sounds like you need to go back to court and ask to first have your custody arrangement reflect the current schedule. Then you need to have child support modified. » Return to Shared Physical Custody Questions

Brette Sember - Legal Expert

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