Situation is my stbxw had an affair and moved out 6 months ago. She has been taking the kids every other weekend for the most part since. Now she has talked to someonne who has informed her that she needs to go for 60/40 custody to keep CS lower ( me having 60%). She will only agree now to taking the kids (ages 10 and 12) every Tues and Thurs (overnight) and every other weekend. We were going through a paralegal at this point but I'm starting to think a lawyer is maybe my best bet. My question is does this schedule sound reasonable given the overnights during school nights. She lives 10 minutes from me but not in same school district. I have no problem with dinner nights during the week or even one overnight on a thurs, but 2 seems a little much with school. Keep in mind during the time since she moved out she has not once ask to have them overnight during the week until recently after she spoke with a friend about 60/40.What are the odds a judge would accept this sched. She is currently continuing this affar and has definitely shown poor moral and stability with the kids.The kids also don't want to go this much either.

Predicting what a Family Court judge will do is generally pure guesswork. Unless the issue iis covered by statutute or case law a FC judge has a wide latitude.

Most FC judges would prefer that the couiple work this out between them. But if you can't agree, I suspect that, since she walked out the judge is more likely to side with you.

P.S. you really shouldn't use odd abbreviations. It took me a bit to realize stbxw was soon-to-be ex wife.

I live in Florida, but my biggest concern is if I could lose it all. She has said if I went with a lawyer she would fight me for custody, to where she is the primary. I know laws have changed somewhat but realistically mothers are awarded custody over father. Any opinions on this schedule would be appreciated.

Again, she left you and she left without taking the kids. If you have prooof of that, you stand a good chance of retaining custody.

As to her threats about your getting a lawyer, they are mostly empty. She doesn't want you to get one, because if you do, she will have to get one or lose. You should consult an attorney who can give you a better idea how local courts rule.

A paralegal can give you NO legal advice legally. You both can use the same attorney to do it

I know the differnce in paralegal and attorney. The problem is she will only agree to terms stated above. She will not budge. My real question was basically does that plan she wants sound to ureasonable or should I just deal with it. If I accept her plan it will save me at least $3000 and that's if she doesn't get a lawyer or a good one anyway. I just don't know anyone who has that many overnights.

Nothing is "too much" or "too little" it is what each of you can agree to.

So if you don't want to accept it, don't, hire an attorney.

Or hire one on the side to talk to without her knowing about it, that can give you legal advice.

On my last divorce, I filed on my own, and represented myself, but I had an attorney hired for advice. You can pay one by the hour to look over and give you their opinion of your agreement

Honestly, I think you should get a lawyer. Remember, she is the one that left and didn't take the kids (as someone pointed out). I don't see it bing a problem with you retaining custody and taking it to court may be a better way of it because even though it is nice when the two parents can just work it out, a lot of times they can't. To avoid an even bigger mess you can get the lawyer now and get a court date.

I think that you should listen to what your children want. They don't want to be there during the week, so tell her no. If she takes you to court, so be it. The kids live with you, you have custody, your soon-to-be ex wife (that was a tricky abbreviation let me tell you) has shown little moral. The 'judge will look at that. He won't remove the kids from their home just because the noncustodial parent is the mother. They are safe and happy where they are. The most he'd do is say yes, they have to go tuesdays and thursdays. You will have to meet with a mediator first though, before you go through a judge. At least that's the law in Oregon..

And yes, her plan is unreasonable. Kids need STABILITY and lots of it, especially during a divorce. They need to be at home, in their own beds during the school week.

Thank you, I agree.

I hope it all works out well for you. I just went through the whole custody thing. It's a scary battle, it makes you feel like you are balanced on the edge of a cliff, and it sup to everyone else if you go over or not. I had nightmares and everything. Laws are changing though, now family law courts are taking the best interest of the child into mind, and not just the old "a child should be with their mother" thing. Its more about disrupting the child's life as little as possible. I was lucky in mine, when I filed for custody the father didn't fight it at all and I was awarded sole custody with no visitation (which was a good thing cause the dad was an unstable drug addict) best of luck to you, and, fyi, you're not left for dead, you're left for a long, happy life :)

A 60/40 split doesn't necessarily mean less child support, it will depend on what you decide for legal and physical custody, parenting time doesn't affect child support as much as the legal terms for custody. The proposal of her schedule will be difficult to maintain with the children and it's necessarily in the children's best interest to have a revolving door household. Considering she left and you have been working a schedule that works for you both, up until she determined that child support was an issue and the fact that the schedule is difficult on the children's stability, I would retain an attorney, even if it is just an attorney to represent the children. You can also try mediation, which is something that a judge may order for the two of you to reach a compromise as this is really about the children and working together for the children.

Keep in mind that to the court system your children are property to be divided and distributed, but in all actuality you don't want to cut your children in half, so a little give and take is necessary to keep your children together through this process.

In her case the 60/40 split lowered her payment by 200 a month. Im more concerned with the overnights w school. It seems everyone is on the same page as far as I should get an attorney. Keep in mind the affair is still continuing and her head is in the clouds. She is very selfish and self absorbed. She is right now trying to switch her weekend for July 4th with me so she can go away with her boyfriend. He is also married and his wife is divorcing him. Two peas in a pod.

If the child support doesn't matter to you, could you offer to lower the support as if you had 60/40 split and have the days? I know in PA, you aren't really supposed to do that, but my friend's ex-wife gave up custody of their son because he agreed to continue child support payments to his mother, even though he had sole custody.

It's possible in her situation that her legal terms for her divorce is joint legal and physical custody, as that is often the determining factor to child support. With one sole legal and physical custody parent, the non-custodial parent pays 20% (in IL) for 1 child. With joint legal and physical custody, 20% is figured for each custodial parent 'paying' each other. Which means in the end the custodial parent with more income pays that difference to the other parent.

A 60/40 split could enhance her position for joint custody.

If the child support doesn't matter to you, could you offer to lower the support as if you had 60/40 split and have the days? I know in PA, you aren't really supposed to do that, but my friend's ex-wife gave up custody of their son because he agreed to continue child support payments to his mother, even though he had sole custody.

You are saying that the ex wife gave up custody because her ex husband agreed to continue paying support? If that happened it did not happen with court approval.

Please remember this is a LAW forum and responses here need to conform to actual statutes.

The odds in (Idaho) are 100% on this, that is a typical schedule, I get our daughter tuesdays and thursdays with every other weekends, what she is attempting to get is joint physical custody, and all court feel that it is in the child's best interest if joint custody is awarded, if she wants to be a responsible parent, let her, its better for the children if she is safe to be around.

the odds in (Idaho) are 100% on this, that is a typical schedule, i get our daughter tuesdays and thursdays with every other weekends, what she is attempting to get is joint physical custody, and all court feel that it is in the childs best interest if joint custody is awarded, if she wants to be a responsible parent, let her, its better for the children if she is safe to be around.

It is not true of all courts, many courts have conditions that are favorable to joint custody, but not all courts have leaned in this direction.

Joint custody is only feasible if you and your ex-partner can work together well. The courts in Illinois, don't consider joint custody the best option.

the odds in (Idaho) are 100% on this, that is a typical schedule, i get our daughter tuesdays and thursdays with every other weekends, what she is attempting to get is joint physical custody, and all court feel that it is in the childs best interest if joint custody is awarded, if she wants to be a responsible parent, let her, its better for the children if she is safe to be around.

Joint LEGAL custody may be a goal, but joint PHYSICAL custody is often unworkable. For joint physical custody to be considered the parents (unless preschool) would have to live in the same school district. Tues and Thurs and alternate weekends is not joint physical custody. Most courts will not see an arrangement by which the children bounce back and forth between parents as in the child's best interests.

As to her being a responsible parent, she left the marital home to have an affair that is ongoing. Seems to me she gave up being a responsible parent when she started the affair.

You just joined this site, I've encountered three of your posts so far and had issues with every one of them. We take pride inth e quality of the advice we give here. So far you are not measuring up. I would suggest, before you respond to anymore posts, that you browse around and see how others answer questions.

the odds in (Idaho) are 100% on this, that is a typical schedule, i get our daughter tuesdays and thursdays with every other weekends, what she is attempting to get is joint physical custody, and all court feel that it is in the childs best interest if joint custody is awarded, if she wants to be a responsible parent, let her, its better for the children if she is safe to be around.

Is your tues and thurs overnights? That is what she wants. I don't have a problem with "dinner nights" or even a Thurs overnight. It's the tues overnight that really kills it for me. Im not trying to stop her from seeing the kids. I just want stability in there lives. Obviously there is much more to this story.

A comfortable schedule that works for most children, although you have to evaluate on your own - since your children are older, is alternating weekends and an overnight on the opposite weeks or two dinner evenings on the opposite week.

Have you been to mediation?

Joint LEGAL custody may be a goal, but joint PHYSICAL custody is often unworkable. For joint physical custody to be considered the parents (unless preschool) would have to live in the same school district. Tues and Thurs and alternate weekends is not joint physical custody. Most courts will not see an arrangement by which the children bounce back and forth between parents as in the child's best interests.

As to her being a responsible parent, she left the marital home to have an affair that is ongoing. Seems to me she gave up being a responsible parent when she started the affair.

Joint physical custody does NOT have to have both parents live in the same school district. You should read up on the Gruber analysis, which is the three prong analysis used in relocation cases for the state of PA. If you only considered joint physical custody in both parents lived within the same school district, people would never be able to relocate, remarry, or move on from their divorces without risking losing their kids.

The third prong of the Gruber analysis states:

"The court must consider the availability of realistic, substitute visitation arrangements
which will adequately foster an ongoing relationship between the child and the non-custodial parent."

In Thomas v. Thomas, 739 A.2d 206, 209 (Pa.Super. 1999), the Supreme Court of PA upheld that the Gruber analysis also applies unequivacably to joint or shared physical custody.

Secondarily, many states adopt a "no contest" divorce, meaning that an extramarital affair has no bearing on the parenting ability, and can not be used as evidence against a parent in court. What she does besides her affair might be, but her affair in and of itself is not grounds to remove her custodial rights.

Additionally, 231 PA Code Rule Rule 1910.16-4 considers "Shared Custody" to be when children spend 40% or more of their time during the year with the obligator.

In the words of a computer expert, "Please remember this is a LAW forum and responses here need to conform to actual statutes."

Left4dead, what state do you live in?

Explain to me how a joint physical custody arrangement can work if the parents live too far outside the child's school district?

And we are not talking about divorce we are talking about custody, where a parent's morality can have a bearing on custody. Would an affair be enough to take away her rights, I don't think so, but it might be enough to limit custody.

If you can find specific statutes to contradict what I've said, please produce them. "Shared" custody is different from joint custody.

I know that in GA, unless you live close enough, at least in the nearby district, you will not get joint custody. Unless of course you home school or have some workable plan on getting them to the school.

But it is common for the every other weekend and one or two evenings a month.

In the end, it is what the two of you agree to and work out.

First off I live in Florida. 2nd I know infidelity is not looked at in custody case. However this is not a case of someone being busted cheating and ending it. It is still ongoing and being flaunted in front of me and the kids. So I think morality would have to play a part. Also kids do not wish to go there so much, theyd rather be at home. Ages 10 and 12. Finally I do not wish to keep her from her kids. I wish she would keep the affair and everything attached to it from them. I also want to keep them stabile for school. I have no problem with dinner nights, etc. My issue w her is " why does she want to sleep overnight so much?", answer is to keep her Child Support lower.

And the non custody parent always wants that, some plan to keep the support lower.

So if you are OK with it, just say yes, sign it and go on with life.

The non custody parent always comes here and complains they are paying too much and want to know how to get out of the payments.

Going to one parent one night, another the other night is just a routine, should not hurt school as long as both parents work together on homework issues, school events and more.

Explain to me how a joint physical custody arrangement can work if the parents live too far outside the child's school district?

To be splitting hairs, you originally stated "For joint physical custody to be considered the parents (unless preschool) would have to live in the same school district" and now you are saying "can work if the parents live too far outside the child's school district."

But I can also give you three solid examples of how a joint custodial situation would work if a parent lived in another school district.

First, if a parent lives in a different district but commutes THROUGH a school district (in other words, would drop his or her child off en route to work).

Second, as in my direct situation, where I live 30 minutes away from my child's school district, a parent has the means to pick up and drop off the child to/from school without impacting the other parent's custodial rights. As explained to me by my lawyer, this is about the equivalent to a bus ride. My oldest stepdaughter, in fact, has a longer bus ride (50 minutes).

Third, in the case of left4dead, the mother only lives 10 minutes away. You can cross three school districts in 10 minutes, depending on how far distance wise it is. In the first ten minutes of my commute to drop off my daughter to school, I pass through seven school districts.

From Zoccole v Zoccole 2000 PA Super 128, where a Mother's relocation request was granted in moving 25 minutes away:

"Our review of the case law in this area leads us to conclude that a Gruber analysis is not triggered in the case of a relocation within the same county, when the same trial court would retain jurisdiction over the children. Rather, in such a case, the court’s analysis of the request should be based on the best interest of the children on a case-by-case basis."

While I realize that in this case, the parties did not exercise joint physical custody, the father had substantial shared custody, as in the case for left4dead. I know for a fact that in PA, you can live within a "reasonable geographical distance" from each other.

You may want to ask yourself, are you actually splitting hairs for the ten minutes, just because the mother isn't in the same school district. While I can not begin to attest to what a judge would do - a lawyer can give this advice - using a ten minute geographical distance to deny joint or shared custody is hardly "in the best interest of the child," assuming this is the only factor involved.


And we are not talking about divorce we are talking about custody, where a parent's morality can have a bearing on custody. Would an affair be enough to take away her rights, I don't think so, but it might be enough to limit custody.

I am also talking about custody in adultery, which by the standards of most states does not constitute immoral behavior. I will quote Port and Sava, Attorneys at Law in the state of NY:


Child custody and visitation are more problematic because of the emotions involved. The paramour is seen as the cause of the termination of the marriage. So, it is not uncommon to for the innocent spouse to demand custody on a “morals” issue. Or the innocent spouse will demand that the children not be exposed to the evil paramour.

Until the sexual revolution of the 1960s, adultery was evidence of poor morals, and could be used to secure child custody. Now, that is simply not the case. Adultery is no longer the controlling factor in custody. Adultery can come into play if the paramour is an “inappropriate” person, such as a convicted felon or a sex offender. Adultery can also come into play if it is part of a pattern of an unstable lifestyle. For example, going out every night, leaving the children unattended, and then coming home in the early hours, coupled with adultery could be used as evidence of an unstable lifestyle.

I will again reiterate what I said earlier. "What she does besides her affair might be, but her affair in and of itself is not grounds to remove her custodial rights."

In other words, you can't use the morality issue just because she's having an affair.

From Dianna J. Gould-Saltman, Esq.:


If an extramarital relationship has carried over after the parties separate, many people wonder whether the fact that the "new girlfriend" or "new boyfriend" is around is reason enough to restrict child custody or visitation.

Aside from the anger and embarrassment of the cuckolded spouse, I am frequently asked whether that doesn't confuse the children ("This is contrary to everything we've raised the children to value and believe") and whether, if the new "significant other" spends the night, isn't that teaching the children that sex without marriage is OK, when the parents have always told the children it isn't. The answer is , under the law, the court must make custody orders consistent with the best interests of the children and, unless evidence contradicts the assumption, it is assumed that the children need frequent and continuing contact with each parent. Actually having sex in front of the children is never condoned and shows a gross lack of good judgment. Short of that, while such relationships might be an affront to the dignity of the offended spouse, it is unlikely to have a significant impact on a child custody order.

However, going back to the original question by left4dead, have you considered an alternative schedule that wouldn't be so "back and forth," that would give her the same amount of time but the days would be put together? Is there a specific reason that she wants Tuesday and Thursday?

You may also want to consider that denying her a shared custody might make you look very bad. In this instance, your feelings about her adultery may or may not be impairing your judgment about her visitation.

First off I live in Florida. 2nd I know infidelity is not looked at in custody case. However this is not a case of someone being busted cheating and ending it. It is still ongoing and being flaunted in front of me and the kids. So I think morality would have to play a part. Also kids do not wish to go there so much, theyd rather be at home. Ages 10 and 12. Finally I do not wish to keep her from her kids. I wish she would keep the affair and everything attached to it from them. I also want to keep them stabile for school. I have no problem with dinner nights, ect. My issue w her is " why does she want to sleep overnight so much?", answer is to keep her Child Support lower.

Believe me, Left4dead, I understand exactly how you feel. Both my ex-husband and my husband's ex-wife left us for an affair - my ex-husband happened to have left me for another guy. I'm not arguing that it doesn't an effect on the children; I see this effect on my child and my stepchildren everyday, including my husband's ex-wife's continuing crazy behavior, jumping in and out of any man's bed that will pay her rent and cell phone bill.

I'm also not discouraging you to go to a lawyer at all. If you feel, in your heart, that the extra night per week is going to be seriously detrimental to their emotional well-being, then that is your right and obligation as a parent.

What I am saying is that custody cases are extremely uncertain and it can go either way. You may end up with a $50,000 legal bill and only 50% custody. Proving that an ongoing affair has a moral impact on the children can mean that you have to hire an independent psychiatrist to evaluate whether your claim is true, and in doing so, might make her stop what it is she is doing, thus wasting your money. Proving that Tuesday and Thursday might be unstable for the schooling can also be expensive and long.

You will also have to look at it from an third party's perspective. How is YOUR attitude affecting the children's loving bond with their mother? Why is she committing adultery in the first place? What did you do to cause the end of the marriage, are you continuing that behavior, and is it detrimental to the emotional well-being of the children? If you have no problem with a dinner visit on Tuesday, what is the purpose of you seeking to prevent the overnight? Your issue with the overnight could also be spun to mean, 'I only want to prevent it for $200 more a month in child support.'

Frankly, I agree with FR_Chuck. You should sign the deal and move on with your life. However, if you really believe that the extra 3 hours per week between dinner time and sleep time is going to be that detrimental to your children, perhaps your first step should be to a counselor to figure out why it is and THEN to a lawyer to figure out if it's worth the battle.

You may also want to take some advice from someone whose custody battle is long in the past. If she is really like you say that she is, then you have no problem signing the agreement because eventually she'll flake out on the Tuesdays anyway. You'll lose $200 a month in child support unless you fight her for it (and in which case, she'll start taking them on Tuesdays again), but you got what you wanted. If she somehow realizes the light and starts really taking care of the kids, and she never gives up her Tuesday, then OK, it's not so bad. The oldest is 12 and in 2 years, she will be in high school. Try forcing a teenage girl to go to her mom's on Tuesday nights.

I here what your saying. I am starting to think I will take the deal she wants now. And later if it doesn't seem to be working out I will bring it to a lawyer. I definetely don't want to be tied up with 10s of thousands of dollars trying to recoup 200 a month and one extra night a week. I don't agree with what she's been doing as a parent by flaunting this relationship in my kids face. I realize with there age they will not want to go as much in a few years due to the "teen phase". I really wish her relationship with this guy would just end and she would come back to reality. I do not want her back, however. Its just hard to have the kids over there and constantly get phone calls from the kids about issues going on there that they don't like. As far as us working together, there isn't any of that. I have much resentment for what she's done and the fact that she is telling our kids negative things about me to justify her own actions. The kids don't buy it, but she does it.

I completely disagree with trying joint custody.

As is stated legally, yes it's an option, but it requires that both parties can work together for the best interests of the children. It's clear in her desire for joint custody, her concern is not the children, but it is still herself. You are saving your energy now and I will pray it's for the best.

It is difficult once joint custody is enforced to show how it is not working, for the courts to consider changing it. In IL, you will have to continue with joint custody for at least two years before they will even reevaluate. I understand the consensus is to give in now and save the battle, to 'try' it.

The practical side of me says, you aren't prime candidates for this arrangement. That the revolving door household isn't in the best interests of your children and personally I would stick to my guns and offer fair non-custodial parenting time.

This is my personal take on your situation. If you decide that joint custody is in the best interest of all parties, please attend co-parenting classes, you will both need to relearn how to communicate for the children alone.

Its not joint custody as in 50/50. I am listed as primary with my residence as the primary. The 60/40 arrangement is with time sharing mostly, however the c support is affected due to the time she has them where she would pay for things such as food. Im not to familiar with all the legal terms relating.

If you maintain sole physical custody, there isn't a change to child support (in IL).

The change is child support is determined by physical custody (who maintains the residence), not by the parenting schedule. Your wife will not agree unless she has joint physical custody.

The schedule is what she is changing so that she has the adequate number of overnights to contest that both addresses are the children's physical residence.

I am not a lawyer but have a similar situation. I did go to court in NY state. My x and I live 30 min away. My advice is to first ask your children why they don't want to go over.(Mom,s boyfriend is there, she doesn't pay attention, they have no room at her place, etc.) The children's issues can be discussed with mom and tried to corrected.As for the arrangement judges will go along with it as long as the parent is deemed good. What you need to realize is the issue of cheating is part of the divorce and not the custody.( unless she was cheating with the children present in say your house) At least in NY the 2 are irrelavent the cheating can go towards her character and that is it. I learned that lesson. But if you give it time the winners will be the children.

In the end, the parenting plan is the "bible" when couples can not work together jointly for the child. It is what will be done if the couple will not do right without it.

And yes, the cheating has nothing to do with the custody agreement, it was ( and really is not) part of the divorce. Courts don't care why much any more anyway.

At the end of the day it is what the two of you can work out and agree to and put on paper,

Also "JOINT" is not 50/50, 60/40 or something it is when on paper in the custody agreement you list legal and/or phsycial as joint, it is who gets the final say if you both can't agree

In joint one my have the child a little more than the other,

Some custody agreements do state a specific amount of time or situations . My agreement states legal and phycial custody for both parents no one having final say. If not resolved then mustgo to mediator and we must follow mediators decision.

Reading on I see you have legal custody so I would suggest that you be trueful with Mom and try 1 night a week and if the children's grades do not suffer try the next semester the 2. This way it allows all to adjust and get their feet wet