Legal Question in Family Law in California
I am currently a single mother with a 7 month old and his father is trying to gain a 25% time share and 50% legal custody. We have a case open and have been going back and forth so to speak, in the upcoming months to our hearing. I would like to remain with 100% sole custody for at least the next 6 months to a year so it will give his father and him time to establish a relationship, as they have not yet. The fathers work schedule is very unpredictable and some weeks he can visit a lot and some weeks not at all, he only began visiting 2 months ago, and it has been sparse. I would like custody to remain the same until his father has a set schedule, and until our child is weaned from breastfeeding, is this realistic? I have considered a 10% timeshare, but only if he is providing 10% of the necessary items for our childs care. I have been told that shared legal custody is normal also, and I dont think he is capable of making decisions regarding our son yet. Right now he just visits on occasion, and he is trying to visit more often, when he can, but there is never a guarantee, and it is often he can not visit when scheduled. I am confused about the time share, because that is what our mediation report recommnends, yet again he has not been bringing over food, clothes, etc.(10%), which I have been told is used to determine child support. I dont want to agree to the 10%, if he ends up being unable to uphold that order. He is asking 25%, and if I knew that he was going to be here 25% of the time, as well as share in 25% of the nessesities for our child, I would not object, but being that his work schedule does not allow this on such a regular basis, it seems unrealistic, and I dont want to agree and then have to go back to court to get it reducedd if that is not the case. I would like the father to settle into work and hopefully get a more realistic set schedule established, and then determine that. Do you think the judge will agree with me? And as far as legal custody goes?? i would prefer to come to a stipulation, and shared legal custody is something that I may be willing to compromise for the sake of agreement, being that he will likely wind up with it at some point in the future. His father just moved here, and is yet to know his son. Is 6months to a year a realistic approach to remain the sole custodial parent?
2 Answers from Attorneys
The court is not going to assume that he cannot hold up what the court finds would be in the best interests of the child and orders him to do. You say you would not object IF you thought he could keep up his 25% obligations. The court will presume that he will keep up the obligations once he is ordered to. I understand that you don't want to have him fail, and have to go back to court, but orders aren't issued on the basis of "what if they aren't followed." You have to go with what's best if he does it, and go back to court if he fails.
Also, you don't ask about this, but your question shows a serious misunderstanding about how child support is handled that I think you need to have corrected as you go into this. You seem to think that if he has 10% custody, he should pay 10% of the child's expenses, and if he has 25% custody he will have to come up with 25% of the expenses. That is completely wrong and actually backward. Child support is paid for the time the child is NOT with you. It also is not based on the child's needs, but rather each parent's income. The law says you are expected to spend a certain portion of your income on your children. How that portion is calculated is complicated and the court uses an official computer program to figure it out, but the simple way to understand it is if the program says you are expected to spend $800/month on your child, and you have 10% custodial time, you have to pay the other parent around $720/month. If you have 25% custody, you have to pay the other parent $600/month. It's a lot more complicated than that, including that the custodial parent's contribution is deducted before the final number, but that is roughly how it works.
I would suggest that you get a consultation with an attorney who can go over the issues of custody, child sharing and child support. You are more concerned about percentages than with the schedule of time that father has with the child. There is no "rule of thumb" on the issue of child sharing schedule so the judge will consider many different factors. You may need to retain an attorney because your question does not focus on issues that a judge will be concerned with. Good Luck, Pat McCrary
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