There are 10 points you need to know about timesharing:
1. The judge will base all of their decisions about timesharing on what is best for the children. In legal jargon, this is called “the best interests of the child.” Sometimes judges make rulings that you and I may think are certainly not best for the child. Even so, you can bet the judge will say the ruling is that way because it is best for the child. Erroneous rulings can be appealed to the appellate court. To ensure you have the best chance at a good outcome, you should have a Board Certified attorney such as Mr. Radeline represent you in court.
2. While there is a new consensus that closer to 50/50 is usually better, judges will not hesitate to make timesharing much more one-sided than that if given a good reason to do so. That means the fight in court over timesharing can be critical. Don’t go to court unprepared or unrepresented and expect that you will walk out with substantial time with your children.
3. The parent who prevails on temporary timesharing has a huge advantage when it comes to more permanent timesharing. In many cases, there is a hearing on temporary relief. Check out our blog for more information. The judge can award timesharing (or custody) on a temporary basis, fairly early in the divorce case. Keep in mind these cases can take months, and sometimes a year or more, to progress through the court system. It is called “temporary” because it continues in time until another ruling from the judge takes place, which normally takes place at the final hearing / trial. The judge at the trial will be influenced by who was awarded the majority of timesharing on a temporary basis. Also, the parent who has the majority of timesharing while the case is pending will have an opportunity to demonstrate through their actions that it is best for the minor children to continue to spend the majority of time with that parent. If the children are earning good grades in school, are getting to school on time, and are maintaining friendships with other children in the area and at their school, it may be an uphill (but not impossible) battle to get the judge to make a significant change in timesharing at the trial. Fight hard in the beginning on this, and it can pay dividends later.
4. It is very difficult to change (or modify) timesharing after the divorce case is over. During the divorce, timesharing decisions are made by the judge on the basis of what is in the best interests of the children. After the judge makes their decision, and after you case is over, there is a dramatically different legal standard that applies. After the case is over, if you want to modify timesharing you have to be able to prove that a substantial change in circumstances occurred after the case was finalized. That probably sounds like a bunch of legalese to you, so let me translate by using some examples.
Examples of things that are almost always a substantial change in circumstances:
a. the parent with the majority of the timesharing is very sick and cannot care for the children;
b. the parent with the majority of the timesharing was arrested twice in the last month for DUI;
c. the parent with the majority of the timesharing has recently become an alcoholic or recently began using drugs;
d. the new fiancé of the parent with the majority of the timesharing just moved in and that person has a history of sex offenses.
Examples of things that, standing alone, are usually never a substantial change in circumstances:
a. the divorce was finalized 2 months ago and one parent would like more time with the children;
b. one parent thinks their school district would be better, even though the children are doing well in their current school district.
The vast majority of situations that people speak to Mr. Radeline about fall into a gray area. They include ongoing communication problems between parents, the majority parent refusing to allow the child telephone contact with the other parent, concerns regarding drugs, alcohol, staying out all night, and leaving the children alone.
The best way to avoid having to try and modify your timesharing after the case is over is to maximize your timesharing in the original divorce case. An experienced divorce attorney like Mr. Radeline can assist you with all aspects of your case.
5. Timesharing affects child support. The number of overnights that the children spend with one parent versus the other parent will affect child support. If the parent with the lesser percentage of time has the children at least 20% of the time, this will factor into the child support calculation. And for every percentage point above 20% that the parent has, it will impact child support on a sliding scale basis. The more time someone has with their children (as set forth in the Parenting Plan), the less they pay in child support. It’s that simple.
Sometimes we see one parent who wants a bunch of timesharing just to decrease their child support obligation. Sometimes we see one parent who is willing to be flexible with their ex only to have their ex not use their timesharing and still reap the benefit of the child support reduction. Regardless of what circumstances you face, we can help you.
6. Winning the timesharing or custody fight can involve a lot of strategy. Sometimes, your spouse will go all out in an effort to obtain the vast majority of timesharing. That leaves you with no choice but to be aggressive to have a fair amount of time with your children. Other times, there may be very good reasons why it is essential for your children’s well-being for them to be with you most of the time rather than with your ex. That is another instance where you may want to use every available resource.
When you make the decision that a fight over custody is worth having, then you need to have a strategy. You should think about all of the people involved in your child’s life. This may include teaches, counselors, relatives, your friends, coaches, and others. Would any of them be able to say that your parenting skills are helpful to the child? Would any of them be able to talk about one or more times when your ex made your child late, or engaged in unreasonable behavior around the child? If so, you should write down the names of who may be helpful, and what they might be able to testify about.
Has you child been in counseling? If so, then the therapist can be a tremendous resource in your case. Therapists can be used in court to present evidence that otherwise would never be heard since your child will not be testifying in the case. If your child has not been in counseling, would it be beneficial? These are things to consider.
Sometimes a social investigation is ordered by the court as part of the custody fight. This is where a social investigator interviews you, your spouse, the children, and their teachers. They will also visit your home and your ex’s home. They then make recommendations to the court. Since they are usually court appointed, neither you nor your spouse will have any input as to who is chosen as the social investigator. Social investigations can pose significant risk in your case because you have no track record with the investigator. For that reason, it very important to have an overarching plan to achieve your custody and timesharing goals. Mr. Radeline can assist you in achieving your goals and safeguarding your child’s future.
7. Holiday timesharing can be just as contentious as regular timesharing. Over the years, we have had a number of clients who unfortunately experienced lots of drama during holidays and other important events. If your ex is prone to drama, then you should expect the worst when it comes to birthdays, summer vacations, Christmas break, and any other important time in your life. It is best to address these issues early on in the case. It may be wise to seek temporary relief regarding timesharing just so you can have some ground rules in place for the next several months. Otherwise, your ex could legally decide at any point that they are going to change what was already agreed to when it comes to your child’s birthday or that weekend when your parents are in town.
8. Keep a diary if you want to have the best chance of prevailing in court. Your trial may be months (sometimes over a year) away. If timesharing is an issue in the case, then you should document anything relevant that occurs regarding your children. Do they never have their homework done when your ex had them the night before? Write it down, noting the specifics and the date. Does your ex pick them up late half of the time? Write down every time it happens. Are your kids late to school when your ex is responsible for getting them to school on any particular day? That goes in the diary.
By keeping meticulous notes, you will allow us to have a lot of ammunition for use at trial. You will legally be able to jog your memory in the courtroom by referring to your diary. When in doubt, write it down in any organized, chronological manner.
9. Be a super parent. Do you want to have the majority of timesharing with your children? Then showcase to everyone just how great you are as a parent. Make sure you help with homework every day. Make sure you talk to them even on days when your ex has them. Make sure they get to school on time. Notice that none of these suggestions is to buy them lots of clothes at the mall, or to bribe them with trips to Disney World. Those things are okay if they are within your means, but being a super parent involves showcasing qualities that the judge will find favorable. By the way, this is not just putting on a show. You should really strive to be the best you can be even though you are going through the emotionally devastating time of divorce.
10. Until the divorce is filed, it’s like you’re living in the Wild West. You’re in a gray area of lawlessness until the divorce case is filed. That’s because both you and your spouse are the children’s parents, and either one of you has the legal right to have the children with you at any time you please. In other words, both of you are able to have 100% timesharing with the children. And if you live apart, you know that’s impossible. But without a divorce case in place, and without a court order regarding timesharing, either one of you can do whatever you please with the children. If it turns out one spouse was doing things that are not in the best interests of the children (not making them do homework, allowing them to skip school, not dropping them off at an agreed-upon time, etc.) then that can be used against that spouse in court during the divorce and can be a reason why that spouse should have less timesharing. But it wouldn’t be illegal for one spouse or the other, before the case is filed, to make the children move in with them, to move out of the area, and so forth. Most law enforcement agencies will tell you straight up that unless there is a court order to the contrary, it is a civil matter and must be handled in the divorce court.
As a general rule, the parent who has timesharing with the children can decide to do whatever they want with the timesharing. By that, we mean that if they want to leave the children with a babysitter while they go out on the town that is normally okay. If they want to just sit at home and watch movies and never leave the house, that is okay too. If they have to be at work the whole time, that is okay. So long as it does not pose a health, safety, or welfare threat to your children, your ex is in complete control over how they exercise their timesharing. If you want to be given first choice for the times your ex is not physically with the kids during their timesharing, you will need what is called a right of first refusal.
A right of first refusal is a clause in the Parenting Plan that allows one parent the option to have the children when the other parent cannot be with the children during their timesharing. For example, a right of first refusal could work like this: Jack has the boys tonight according to the Parenting Plan. However, he has to work overnight at his job because of a special project. So, he has asked his mother (the boys’ paternal grandmother) to watch them. But he has to give his ex, Jill, the right to have the boys tonight (even though it is not her night) since Jack will not personally be with the kids. If Jill accepts, then the boys are with her for the night and the rest of the week follows normal timesharing. If Jill declines, then Jack can let his mom (or whomever else he wants) to babysit the kids while he is at work. A right of first refusal must be requested at trial, or written into the settlement agreement, or else you will not have one as part of your timesharing schedule.
A new boyfriend or girlfriend can create a lot of drama. It is perfectly legal for you or your spouse to have a boyfriend or girlfriend while your divorce is pending. Many people choose not to do so for practical reasons, and that is a wise choice. Here is a question we get asked often: How can I keep my kids away from my ex’s new boyfriend or girlfriend? We have seen and heard it all. The new significant other is a drug user, alcoholic, a bad influence, a sex offender, has a criminal record, or treats their own children poorly. If there is a health, safety, or welfare risk to the children, and if the risk is a result of your ex’s new boyfriend or girlfriend, then you have a valid point. If they really are a convicted felon and continue to use heroin, then we should be filing an emergency motion in court to get the kids out of there. But many times emotions take over and there is not really a threat to the children. So be honest with yourself. If there really is a threat, let’s bring it up in court and by all means keep your children safe. If you are the person with a new significant other, and if your ex is threatening you or hauling you into court over perceived issues involving your children and your significant other, then you should aggressively defend yourself. No matter which side of the coin you find yourself on, we can help you and your children. Contact us today for a consultation with Board Certified divorce and custody attorney Charles D. Radeline.
If you or your ex has real problems, then those will need to be addressed in court. By real problems, I mean drug or alcohol abuse, a criminal history, a history of severe depression or attempted suicide, significant psychological disorders, domestic violence, or a physical disability that prevents them from adequately supervising the children during their timesharing. If you are the one with the issues, then we will need to proactively work to demonstrate that you have overcome them or are overcoming them. That is the best way to maximize time with your children. If your ex is the one with issues, we will work with you to document the problems and will develop a strategy to ensure your children’s safety and to maximize your time with the children. We have had cases where the parent on the other side of the case was ordered to undergo random drug screening for an extended period of time before unsupervised visitation was permitted. We have seen cases where a parent was given a graduated timesharing schedule to ensure the safety of the children. There are a number of different methods we can use to help ensure the safety of your children.
If your spouse is violent, then our foremost concern is the safety of you and your children. Mr. Radeline will work tirelessly to ensure any timesharing is supervised if your ex could possibly pose a threat to your children’s safety or to your safety. If necessary, we can pursue a restraining order either as part of your divorce case or as a stand-alone case. If at any time you fear for the safety of yourself or your children, call 911. After you and your children are in a safe place, call us.
Supervised visitation allows a parent to spend time with their children in a setting that ensures the safety of everyone involved. There are a limited number of supervised visitation centers in your area, and if a parent is awarded timesharing on a supervised basis it will most likely be for only a small number of hours per week. There is a charge assessed by the supervised visitation center for each visitation session. The supervised visitation ensures the safety of your children, and your safety. You will not need to conduct drop-offs and pick-ups anywhere other than the supervised visitation center. Supervised visitation is usually designed to ultimately allow unsupervised visitation after a good track record is demonstrated. However, showing up late, no call/no shows, and impolite or aggressive behavior at the visitation center can result in a judge decreasing or suspending visitation altogether.
Sometimes want a 50/50 timesharing split. Some people call this “rotating custody.” You will want to think long and hard about this before you decide to agree to it with your ex. Here are some points to consider:
a. Some judges are very reluctant to do 50/50 timesharing. Depending on who your judge is, you may find it is a difficult sell without an experienced attorney. The reason some judges are reluctant is because they believe the child needs one stable home during the school week. Remember, the judge wants to do what is best for the child, and it is the judge’s duty to ensure the best interests of the child are protected. Something close to 50/50, but not exactly 50/50, may work for a reluctant judge; it all depends.
b. There are some practical problems that arise. Is it going to be one week on, one week off? If so, then your child may face challenges in hanging out with their friends. Is each week going to be split? Then your child will be having some school nights in one home and other school nights in another home. This can result in performance problems in school. Do you and your ex live in the same neighborhood? If not, then one of you may be doing some significant driving to and from school. Keep all of these issues in mind.
c. 50/50 does not mean zero child support. Child support guidelines must be calculated and filed in every case, including those where there is an equal timesharing split. Many people think there will be zero child support with a 50/50 split. This is not necessarily true. The number of overnights with one parent versus another is one of several facts that go into child support calculations. For child support to come out to zero, there would have to be an even split of timesharing, both parents would have to have exactly the same income, and there would have to be no one paying for health insurance, child care, or non-covered medical, dental, and ocular expenses. Otherwise, there will be some child support owed from one parent to the other, notwithstanding the 50/50 split.
d. If you agree to 50/50, it will be difficult to get more timesharing later. As we discussed before, you will need to demonstrate a substantial change in circumstances in order to modify timesharing after it is set. By agreeing to 50/50, you are agreeing to ONLY 50% of the time. If you are okay with that now, and until your child is 18, then I am okay with that. But think long and hard about whether you may want additional time with your child once all the papers are signed and once the divorce is final. Because if there is even a small chance you will be unhappy with only 50% of the time, then you should seek more time now. There is no guarantee that you will be able to meet the “substantial change in circumstances” legal standard later on down the road.