Question:
My ex wife has primary. Recently she told me if I quit my job that she would give me primary as long as I stayed home. I said okay.
3 weeks later I told her I submitted my notice at work. Now she changed her mind. I have first right of refusal so instead of going to day care I decided to watch him. Will this help me win primary. She leaves him at day care on average of 11 hrs a day.
I can support him not working because I am retired from previous job. I calculated that I would have him 22 out of 31 days of the month. 256 hours awake time versus her 45 hrs. Her reason of not giving me primary… “I don’t want you to win.” I had a hard childhood and want better for my son.
Answer:
Fortunately, it appears that your ex-wife’s change of mind has not created a major financial hardship for you after quitting your job. Unfortunately, you have fallen victim to the axiom in divorce matters that the ex-spouse’s promises are not binding until the judge approves the agreement.
As you do not advise as to what the terms of your custody judgment provide, it is not clear as to what you are referring to has primary. Assuming you do not have joint decision making authority (joint custody or joint legal custody), the change of sole legal custody (decision making) from your ex-wife to you is a major step. The change of the physical custody, or visitation, schedule does not necessarily cause or require a change in sole legal custody, although the normal process would be to give the parent with the majority physical custody also the sole custody. While care of the child during the day is important, courts also look closely at who provides the bedtime and morning supervision. Some courts calculate the physical custody split based upon overnights per month, not hours per day. If you are seeking sole legal custody, while your assumption of a majority of the waking hours care is significant, many other factors not addressed in your question would also be considered.
If you have joint legal custody and the concern is over being designated the primary joint custodian, the significance of that label varies by jurisdiction. Generally, the joint custodian who provides the majority of the direct care of a child, which may be calculated by waking hours or overnight responsibility, is designate the primary custodian. As with sole custody, the exercise of the majority of daytime supervision of the child does not necessarily dictate a change of the primary custodian status. The overall supervision of, and responsibility for, the child; the rights and obligations under the joint custody agreement; and other factors may also be considered in a court addressing the primary custodian status.
The practical aspects of being identified as the primary custodian may include who pays child support, who provides health insurance, and who decides where the child lives. Often an ex-wife’s offer to change the physical schedule in a joint custody arrangement based upon the father’s availability is reconsidered when the mother realizes the change may result in a change in these attributes of being the primary custodian.
Assuming your ex-wife will not deny her proposal, or better if you have it in writing or email, you may be able to file the appropriate motion with the court to have the physical custody schedule agreement formalized into a court order regardless of any change in the primary custodian designation. Your ex-wife could still contest the continued appropriateness of the physical schedule proposal, but your availability versus daycare would be a significant consideration in favor of implementing the schedule.
As your ex-wife’s statement typifies, the mother often feels she needs to have the primary custodian label to “win” the divorce, regardless of the reality as to who is providing parenting for the child. If that is the issue, provided you obtain the schedule and other resolutions you desire in a court order, her maintaining the “primary custodian” label may not be significant under the law applicable to your situation.
