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Legal vs Physical Custody

JanRebecca's picture

Not sure where I am to be posting this but I've a question - After my post yesterday I went home from work and dug out the Custody agreement DH has with XW and was looking at it. They had it written up (to what they agreed too) and then signed in court. They both have legal custody but must keep each other informed of what happens when with other parent. XW has full time physical custody with my DH having partial custody and it says they shall agree on time he gets to spend with SS8. And the time spent with SS 'BOTH' parties have to agree on the time - which they decided way back when DH would get him first full weekend of every month  from Friday through Sunday.  However this time is not written on the agreement. Stipulated that they share driving time since we are 45 min to an hour drive away. So how can she go to court to sue him over him not taking him more weekend when he can't get off work? THIS was something they agreed on together . Now she just yells at him about it and says she's suing him in court. I"m not familier with custody agreements and the like.  

Iamwoman's picture

First of all, she can't "sue" him in family court. Nobody sues over child custody issues.

The most she can do for violation of a custody agreement is take him to court for contempt, BUT he is not in violation of any written agreement, so she doesn't have a leg to stand on.

Basically, she is just being a bully. Document everything she says and does. It sounds like she is turning into a HCBM, and DH may need to eventually taker HER to court to establish a more black and white time sharing document for his own protection. For now though, don't worry a bit, and just document her ludicrous behavior.

NakedBee00's picture

Ok I know state laws differ from state to state but in my state shared  "legal custody" just means BOTH parents needs to agree on medical/dental and school issues for the said child and has nothing to do with physical custody. Now  "Physical Custody" referes to where the child lives or custody. It sounds like BM in your case has full  "Physical Custody" and DH has parenting time? If that's the case BM can't force DH to visit his son if he has to work. Worse case scenario is she would file a petition with family court saying DH in violation but once the court sees its for work and not like DH is running off to Europe with you they will throw it out. Bottom line is BM has full Physical Custody which means kids live with her and DH just gets visitation rights. At least thats how it is in my state.

Thumper's picture

BM has residental custody of your has "parenting time" DAD does not have to accept visitation at all. When dad works, there again he can say no. 

You may want to check current cs 'award" it based on an amount of overnights at your house? IF dh, has said no to any overnights, re-figure based on 0 overnights. Get ready to pay more.

google your states cs calculator.

Rags's picture

They have a right to visitation as stipulated in a CO but... the primary advantage that an NCP has is that they do not have to take their visitation and if they choose not to... the CP is stuck with the kid. 

Sounds to me that the CP in  your case has an issue with the fact that your DH has three kid free weekends per month.   Though we always had a long distance visitation schedule to manage (5wks summer, 1wk winter, 1wk spring) and otherwise we always had the Skid, we did not have to deal with a whole lot of inter-household drama between my DW and the SpermIdiot at least on a regular basis.  We could smack them into submission as necessary but it was periodic at worst.

BM very likely cannot force DH to take his kids more often than he wants to and... any time he spends with his kid(s) is governed in duration by the visitation element of the CO.