[Justwantfair]

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?

[miheui]

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."

[miheui]

Left4dead, what state do you live in?

[ScottGem]

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.

[Fr_Chuck]

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.

[Left4dead]

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.

[Fr_Chuck]

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.

[miheui]

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.

[miheui]

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.

[Left4dead]

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.

[Justwantfair]

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.

[Left4dead]

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.

[Justwantfair]

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.

[accounty]

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.

[Fr_Chuck]

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,

[accounty]

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