VIC Disagreeing with 50/50 Custody of Children- What to Do?

[Wdcw02]

Hello.

I have been separated from my ex now for 3 1/2 months. For the first month, I stayed in the house (spare room) as I had nowhere to go. I needed to wait a further 6 weeks until my new home was available/vacant.

My ex made it increasingly difficult for me stay, even packing my belongings and getting my child to help him. He locked the doors denying me access to clothing, personal items and medication. I have a nearly 3-year-old child. My ex refused to negotiate on any other care of the child, other than 50/50. I found a friend to stay with and took my child for most of the 50% I was allowed by him.

I am now set up in my lovely home and have the child 50/50. I never agreed to the 50/50 custody of children, but the ex "told" me that's what we are doing and he said "it's not negotiable". He refused to look at any other plan or talk to me about it.

My baby is only 2 (3 in 2 months) and I have been his primary carer right up till we separated. My ex is forcing me to do this arrangement. I agree the child needs to see his father and my plans look at between 30/70 and 35/65 with me as the primary carer.

I am worried the effects this 50/50 is having on my child and he is displaying anxiety and at times refuses to go to to dad's, though I take him and settle him as best I can. I don't want to continue having 50/50 custody and care for my child.

We have had mediation screening and we're yet to have appointments.

How can I keep the child in my primary care until mediation? I believe if I vary the ex's demands of 50/50 by one even one minute, he will do the same to me. If I kept the child an extra night, I probably won't get him back at all. I am terrified.

Can I set the rules somehow until mediation? There are no orders (apart from a letter from his solicitor saying if I take my child to see my dying mother in NSW - I am in Vic - that he will get a recovery order) even for a short trip, he will not consent

If I don't return my child to his father but encourage some time, just not 50/50, how do I do this without the ex taking him and not returning him to me? Will it look bad in family court that I have followed the 50/50 (bullied into it) or I keep the child in my care until mediation?

Why should the ex set the rules and I have to follow?

Thanks

 

[AllForHer]

Why should you set the rules for your ex to follow?

 

[Wdcw02]

I am asking why he should set them and I have to follow just because he says I have to. Being so young, I am concerned the impact this is having on my child.

He spends 5 nights in a row away from me now (and then his father). The psychologist says this is detrimental to the child. I am trying to get him to look at other options better suited for the baby but he just says no

 

[sammy01]

Yep, look you're not likely to get a sensitive response here... Largely because of the way you write. Let me give ya an example. 'My child' - nope, it's 'our child'.

So you're saying your nearly 3-year-old is a baby? See how you're using words to create a sense of sympathy? You have a 'lovely home', that is nice, but it doesn't mean 50/50 isn't appropriate.

So psychologists say it is detrimental to the child? Which psychologists? Names?

Look, I'm sure you can find some quack on the net who will say mum is more important. There are lots of quacks saying lots of crazy s**t.

So with that in mind... I hope people here are trying to give solutions... Let's go with that...

Sorry to hear about your mum...

I'd suggest this -

Inform ex you're taking the kid to NSW and provide the dates. Do this all via email. Explain why you're going. Inform him that you're prepared to work with him to created a calendar with make up time for the time he will miss with the kid... All of that seems reasonable?

Let him take you to court with that (BTW don't take my opinion if you're moving to NSW for an extended period. One thing to go visit mum for 2-3 weeks, another thing to go for any longer).

So 5 nights away is too much? Do a 4 night rotation?

So at this point your best bet is court if you don't want 50/50 to continue... It will be your job to show that 50/50 ain't working. And so far, all you've given us here is that you don't like it.

Nope, sorry there is one more thing - you've also mentioned the child has some anxiety? Is this your assessment? Or a child psychologist?

Look many kids have anxiety when all this divorce separation happens. By the sounds of things, you're doing the best you can to help child manage this. Good - keep doing it, because it us unlikely it is gonna change. My kids used to cry when I drop them at child care, but I still left them - doesn't make me a bad parent.

Have a read - especially the bit about parenting time. So 50/50 is where the law starts when looking at this stuff. Not what you wanna hear, but you kind of need to deal with the fact that you could spend 10's of thousands fighting for 70/30 OR 60/40... but is it worth it?

What the court considers when making a parenting order | Victoria Legal Aid

 

[Trying2bfair]

I know this is slightly old but I did have a suggestion, I actually agree for a 3 year old five days without seeing either parent is too much. A lot of psychologists don't recommend that, alternative schedules are 2/2/3 so dad can have baby Mon, Tues and you can have the baby Wed, Thurs and then every week you rotate - Fri Sat Sun.

It's still 50/50 but it just means you have some shorter burst between the five solid days so the child doesn't feel so much like the other parent has disappeared. Five solid days each time is just disruptive at that age. By day five, the toddler would just feel settled. Some people also offer a dinner to the other parent on one of the five day spurts, but I think you guys are too high conflict for that!

Look I don't doubt you have been bullied, your ex does sound very controlling but at court the status quo will have been set for 50/50, you will have a hard time fighting that. Really you need a lawyer, you desperately need a lawyer.

Look there is nothing wrong with 50/50 if you are both taking care of your shared child but you absolutely want to get some legal advice of things you need in the CO outside of visitation hours, who gets holidays Christmas, new years, baby's birthday?

If you do want to take a holiday you need to have that you get x time per year with x amount of notice, you need to be clear that at school age this will be revised, then a child could prob handle week on week off? But who gets what school holidays.


You need to be really clear in your orders because your ex seems to control and if you leave a loop hole or gap he will use it, you don't want to be arguing every year about who gets to claim the child on their tax return etc

Get a lawyer, trust me you really really need one!

I'm sorry about your mother, it is disgusting that he won't make an allowance for you to take your shared mutual child to say goodbye, that's just wrong.

 

[Hoang Trang]

I know this is slightly old but I did have a suggestion, I actually agree for a 3 year old five days without seeing either parent is too much, a lot of phycologists don't recommend that, alternative schedules are 2/2/3 so dad can have baby Mon Tues and you can wed Thurs and then every week you rotate Fri sat sun its still 50/50 but it just means you have some shorter burst between the five solid days so the child doesn't feel so much like the other parent has disappeared, five solid days each time is just disruptive at that age, by day five the toddler would just feel settled. Some people also offer a dinner to the other parent on one of the five day spurts, but I think you guys are too high conflict for that!

Look I don't doubt you have been bullied, your ex does sound very controlling but at court the status quo will have been set for 50/50, you will have a hard time fighting that.
Really you need a lawyer, you desperately need a lawyer.
Look there is nothing wrong with 50/50 if you are both taking care of your shared child but you absolutely want to get some legal advice of things you need in the CO outside of visitation hours, who gets holidays Christmas, new years, baby's birthday? If you do want to take a holiday you need to have that you get x time per year with x amount of notice, you need to be clear that at school age this will be revised, then a child could prob handle week on week off? But who gets what school holidays.
You need to be really clear in your orders because your ex seems to control and if you leave a loop hole or gap he will use it, you don't want to be arguing every year about who gets to claim the child on their tax return etc
Get a lawyer trust me you really really need one!

I'm sorry about your mother, it is disgusting that he won't make an allowance for you to take your shared mutual child to say goodbye, that's just wrong.

My children lived with me for 1 year and 7 months with the last year being 5 nights a week. Then she retained the kids for 7 weeks and I had to sign consent orders so I could see my kids again.

Currently I have them 3 nights a week. How does the court view the status quo now? Would they give more weight to when kids lived with me for a longer period of time?

 

[Trying2bfair]

My children lived with me for 1 year and 7 months with the last year being 5 nights a week. Then she retained the kids for 7 weeks and I had to sign consent orders so I could see my kids again. Currently I have them 3 nights a week. How does the court view the status quo now? Would they give more weight to when kids lived with me for a longer period of time?

I am not a lawyer so this is my take on what you have asked but you need legal advice so please do ask a lawyer.

The issue I see is you already signed consent orders, did you get a lawyer when you signed the orders? Did you go through mediation?

The process to court can be a long one dependent upon where you live, I know that in NSW metro areas it can take 18 months to 3 years, the kids will have been on the current schedule longer than you had them. Your ex could argue that that is the current status quo and you agreed to it. But again this is just speculation you need to ask a lawyer.

Your ex should not have withheld the children that was plain wrong, if you had gone down the court process then I'm sure you would have come out with at least a 50/50, courts do not look highly on parents who do what your ex did.

In the case of this women the reason it is so important is that they have no orders in place and if they do take it to court the court will have to look at what they have been doing prior to orders (the status quo) and since its a very fair and equal 50/50 split a court would likely keep it as is, she would need some pretty compelling evidence to have it changed.

Now if she withheld the child the outcome would be quite different honestly she could lose 50/50 and become EOWE and one night mid week, removing her chance of being the residential parent, her ex sounds like he knows this and will take it all the way.

I suggest speaking with a lawyer but I don't think status quo will work in your favour if you have a current order that is being followed, but if your ex was not following the orders and giving you more time than the 3 days for ay least 6 months then you have cause to use status quo to argue the change to the orders for more time, but again please ask a lawyer.

 

[Hoang Trang]

I was the one who initiated mediation. We only did one session before she requested the certificate to start court.

I didn't have a lawyer when I signed the consent orders. I was told that if I didn't sign then I wouldn't see my kids. Had no contact with them for 7 weeks, she blocked my number so not even a phone call or FaceTime. I was desperate to see them.

 

[MartyK]

How can I keep the child in my primary care until mediation? I believe if I vary the ex's demands of 50/50 by one even one minute, he will do the same to me. If I kept the child an extra night, I probably won't get him back at all. I am terrified.

I think you already know the answer to this question. Quite simply, if you withhold the child, then there is likely to be a some form of retailiation by the other parent. Either action, by you or him, will not be good for the child.

If the other parent is controlling, which it appears they are, then your best bet is third party adjudication.

Can I set the rules somehow until mediation?

As per above. Have you been to mediation?

Will it look bad in family court that I have followed the 50/50 (bullied into it) or I keep the child in my care until mediation?

Issues for the child in coping with the current arrangement can be raised in your Court materials. Unless there are genuine safety concerns for the child, it is not a good idea to take matters into your own hands, especially when you are aware of the consequences for the child in doing so i.e. you take an action, he does the same etc

Why should the ex set the rules and I have to follow?

He shouldn't, but then again nor should you.

While I have no issues at all with you referring to the child as 'your' child. There are very few separated parents (mums or dads) and even non-separated parents who refer to their own children as ''our' in discussion or when asking questions in direct reference (e.g. I'm taking 'my' son to the doctor, 'my' oldest daughter is dating, do you think...etc), but in the context of major decision making for the kids, where they live being one of them, this should always be a 'our'.

Good luck

 

[Trying2bfair]

I was the one who initiated mediation. We only did one session before she requested the certificate to start court.

I didn't have a lawyer when I signed the consent orders. I was told that if I didn't sign then I wouldn't see my kids. Had no contact with them for 7 weeks, she blocked my number so not even a phone call or FaceTime. I was desperate to see them.

Again I am not a lawyer this is just my opinion

I totally understand and she used your desperation to get what she wanted, which was terribly wrong, but I think you shot yourself in the foot giving it to her.

If you had gone before a judge with all the evidence you had the case would have been largely in your favour for primary /residential parent, courts do not take kindly to parents that withhold children, it shows an inability to support a meaningful relationship with the parent and children.

In your case since you held majority of the time share before she took the kids you had a very strong case.

There are no guarantees when you go before a judge that you will come out with the result you want though so again I am speculating.

I do think you will be hard pushed to change the current orders, I would get a professional opinion though as I am absolutely not a lawyer and I think you could still petition for 50/50, the upside of having the order in place while you try for 50/50 is she cannot withhold the children while you go through the process, those orders stay in place until new orders are approved.

If I was you, I would get some proper legal advice from a lawyer about getting 50/50 of the children, that is where I would definitely start.