05 Sep Should I fight ex over custody for older kids?

Q. My wife and I divorced three years ago when our twins were two years old. We share custody and the kids spend half their time with me and half with her. Now that they will soon be school aged, I think they should live in just one house. My wife doesn’t agree. What do I do?
— Dad

A. It seems you and your ex-wife were able to come to a resolution in the best interest of the children, and we hope you’re able to do it again.

Resolving a divorce with a shared parenting time plan, whereby the children are with each parent 50 percent of the time, is typically in the children’s best interest, all other things being equal, said Kenneth White, a divorce attorney with Shane and White in Edison.

“You should know that the majority of mental health experts advising the family court about issues of custody and parenting time have been moving toward recommending shared parenting time arrangements more and more,” he said.

White said any time a party to a divorce can establish a “significant, permanent change of circumstances” since the last time an order was entered addressing custody and parenting time, he or she can file an application before the court to seek a modification of a custody and parenting time plan.

“There is case law that supports the proposition that parenting an infant is different from parenting a school age child, and on that basis alone you may be able to establish a significant, permanent change of circumstances,” White said.

But that would only be the first step.

“You would also need to convenience the court that it is in the children’s `best interest’ that the custody and parenting time plan be changed,” White said.

That second step that will be much harder.

White said your opinion alone will not be enough. You’ll have to address what other factors you believe are relevant.

For example, do you and your ex live so far apart that it is not realistic for the children to get to and from school in a timely manner from each home? Is your ex so irresponsible that she cannot be trusted to oversee the children’s education? Does your ex no longer have sufficient means to provide adequate housing, care or supervision for the children?

Along these lines, White offers caution.

“Once you involve the court, i.e. seek a modification of your custody and parenting time plan, you may not like the end result,” he said. “Specifically, if you file a motion seeking primary, residential custody of the children, your ex will surely file a cross-motion seeking similar relief.”

At that point, one of three results will occur, White said. The judge may decide to maintain the status quo, the judge could rule in your favor or the judge could rule in your ex’s favor.

Further, once a motion is filed you may find yourself involved in protracted, costly litigation, White said. For example, the judge could require a formal best interest evaluation to be performed by a mental health professional. Such evaluations alone can cost in excess of $7,500, and take six or more months to complete.

White said once you cross the line into contested litigation, it is often difficult to return to the previous status quo.

“Specifically, right now your ex and yourself are likely co-parenting in an efficient, beneficial manner,” he said. “If you commence litigation seeking to lessen the amount of time your ex sees the children she will likely be upset, and that will likely alter how the two of you interact going forward. Some wounds never quite heal all the way.”

Accordingly, White said, he strongly recommends you take your time to consider everything that is at stake before you move forward and seek to change the status quo.

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This post was originally published in September 2017.