Custody. What to expect

Currently going through a divorce with a 2 year old son. I have a bachelors degree and currently have a full time job working for a government agency. I just got hired into a better position that is about 40 minutes from where I'm currently at.

My soon to be ex husband has moved out on his own will from the house we shared. We have agreed to sell it. He moved into a one bedroom apartment. Currently we are working together for visitation. It has worked so far. But as far as paperwork for divorce goes, he refuses to agree to anything. He is currently in school and has about a year and a half left. He has no job and like I said lives in a one bedroom apartment. He threatens to take me to court for custody.

My question is, what can I resonably expect in court? Do you think he has a chance to get custody? Also, what is the rule of thumb in Ohio for moving? I'm looking to move 35 minutes away from him for my new job. He doesn't want me to move farther than 15 minutes. I'm not looking to keep him from seeing our son. I thought 35 minutes was resonable since it was for a better job and in a better community than we are currently in.

Thank you for all your help ahead of time.

He's free to do what he pleases in terms of asking the court for custody, but beyond shared legal custody and probably shared physical custody, not sure what he's getting at.  He'd have to establish to the court that you're a monster to get sole custody if that's what you're saying, and there'd be an existing children's protective services file on the matter if you were any such thing.  If he wants to waste time and money on stuff, he's free to do that.  (I hope he's prepared for the court to tell him to get his behind a job, by the way; regardless of whether he is capable of making relatively little compared to you, he will be ordered to pay his fair share even if you have 50/50 custody.)

"He doesn't want me to move farther than 15 minutes."

Doesn't matter what he wants.  That said, you'll have to come to some agreement with regard to transpo in terms of handing off of custody.

If you do not have an attorney, you ought to.

That's exactly what I thought. He claims to have an attorney already and says he asks him all these questions. I don't currently have an attorney because we were at a relative agreement on everything and were going to write up the papers ourself. Then now he's just changing everything he wants.

As far as the move. I've offered to split drive time or alternate driving with him.

I had agreed to joint custody and I'd get no child support. I'm just nervous when it comes to my son. I thought he was getting a good deal with that agreement.

Even if you agreed on everything, that doesn't mean you don't need to consult your own attorney.

Divorce 101:  don't listen to the X (esp. one who doesn't have a job, unless he's independently wealthy and can afford an attorney ... in which case you consult attorneys who are willing to petition the court for an order that your wealthy to-be-ex pay your legal fees).  :)

"I had agreed to joint custody and I'd get no child support."

Er, why would you agree to no child support?  I'd change my tune on that.  Being nice gets you nowhere.  You two are free to agree to a modest sum, but you don't need to negotiate "joint custody" by giving up anything.  That will be the default, and the default in reality is that the mom will get primary physical custody regardless.  In any event, until judge puts pen to paper (or you two do), you're free to change your mind about whatever you like.

"I'm just nervous when it comes to my son."

I get it, but psychological weakness ... there's no room for it in this stuff, I'm afraid ... not once you get a whiff of the irrational/unreasonable from the other side.  (People give into intimidation tactics from car sales people for crying out loud, so I understand why when your kid's involved, it's far worse.)  

Still, I'm never clear why folks think they could lose custody of their child just because a spouse threatens to (or actually does) petition the court for such.  It would take very careful planning for even the most crafty parent to arrange for sole custody of a kid even temporarily.  (Any law student would be able to successfully counter what would be a (necessary) assertion that you're a monster or cannot take care of your kid.  "So ... the father's been ok with this 'monster' or neglectful woman taking care of the kid despite no court order being issued as to custody only until ... she decided she wanted to move 40 min away?  You're so worried about your kid's well-being that you ... never contacted CPS?  Didn't take the kid and refuse to give him/her back (absent a custody/visitation order, either of you is free to take the kid and not let the other see him/her until there is an order). Yeah, judge this sounds terribly credible." 

If you're in a one-party consent state (google "can we tape"), feel free to start recording every conversation from here on in without telling him.  Just in case he makes threats/insinuations or you want to get him to repeat them (by asking a leading question or a leading statement, like "John, why is it that you were thinking it was okay to threaten me with seeking full custody just because ... when you know there's no basis for doing so and that you don't even WANT it?"

Who has been the primary caretaker of the child up until now?

Family court judges tend to give some preference to the parent who has been the primary caretaker of the child.

That being said, if the child has been in day care while you worked and he studied/attended his classes, etc. without having to deal with the distractions of a baby/toddler, then that fact pattern would NOT suggest that he really has been the primary caregiver of the child.

But, you might be well advised to have an attorney make that argument if you do wind up in front of a judge.

I don't think that most family court judges would think 35 minutes is a deal breaker, but some might say that the child must stay within "the county".  Out here in CA, where counties can be huge, many court orders on this subject tend to say no relocation of the child more than fifty miles from the NCP's residence without permission of the court.

I can't comment on Ohio specifically. Still, I would not think that the judges in Ohio are all that different than the ones in CA.

I put that in wrong. He's not looking for sole custody, I mean to say he's looking to be the residentual parent where our son would live with him and just visit me. When I look at it, I don't understand how he could get primary custody as seeing as he doesn't have any form of income other than the VA for his school that pays him around a $1000 a month for living expenses.

As far as staying within the county. Where I'm actually moving to is closer than a majority of the borders of the county because it's the first city just south of the county border. The east and west borders are farther than where I'm moving. It's also within 50 miles of his residence.

Yes, Dad has a chance at getting custody.  You work full time and Dad doesn't.  If he can convince the judge that he's capable of being primary caregiver or that he has been, then it's possible that Dad could be named the residential parent.  I know quite a few custodial fathers in OH.

If I recall correctly, I had to get permission from the court if I moved greater than 30 miles away from my ex when we divorced as the residential parent.  My ex, as the non-residential parent, was not restricted.  This is likely county specific, and in your case (since you will have both moved from the marital residence), it's not clear if the limit would be 30 miles from your ex's residence, or 30 miles from the marital residence.  Definately something you should run past an attorney.

You may want to think about the agreement that either parent not pay child support.  I believe one of the other posters said you shouldn't bargain it away, but in your case, you're employed and your ex isn't.  If you are in a shared custody situation, or he's named the residential parent, you could end up paying him CS.

"When I look at it, I don't understand how he could get primary custody as seeing as he doesn't have any form of income"

Custody is not based on income.  It's based on who is the primary caregiver for the child. 

Who cares for the child now while you work? do you plan on putting the child in daycare even though Dad appears to be home with the child some of the time? You can certaily agree on joint custody but it does not make much sense to give you custody if the kid is going to be put in daycare full time and Dad is without the child. If you can have Dad watch the jid while you work that might make more financial sense.

The father watches him while I'm at work a couple days a week and his mother watches him the others. But that being said, just because he doesn't work doesn't mean he's not in class. He currently takes 21 credit hours so he's busy with school a lot of the time.

I just don't get why a parent can be faulted for working while the other one refuses to work. I work a normal 40 hour work week just like any other parent and get a three day weekend every week. So does that mean if I just up and quit work I'll be able to maintain residential custody of my child. He has no way to support him, lives in a one bedroom apartment and has him sleep on the floor while I'm living in a two bedroom house and he has his own bedroom here with me. Also I'm the primary care giver as everything he needs comes out of my pocket. His father pays for nothing.

And when you say primary care giver, what all does that entail? I pick him up around 5 every day and he stays at my house. I have him most weekends as his father is more concerned about going out and has refused to take him due to him wanting to go out. He pays for nothing for him. I cover all his insurance cost, clothes, anything he needs really.

He would get the money from you. The parent with the most income is not the default custodial parent. Your STBX could convince the court that his schedule can be managed to provide the most amount of time with your son. If your son has been in daycare for most of the hours you've been working, and the STBX is not an unfit parent, your STBX can absolutely be granted primary custodial parenthood. That doesn't mean that you can't pick him up after work and have him with you.

Most courts do consider the age of the child (the "tender years doctrine"), especially if mom is an at-home parent, but it sure can go the other way.

Good luck, stay calm, write EVERYTHING down and get a good lawyer. This is NOT a do-it-yourself project.

A

Okay, and what happens in a year and a half when he's done with college and starts working? Or what about when our son starts school and he'll be in school while I'm in work?

Have papers been filed yet? Until that time, you can pretty much do whatever you want until the temporary orders are signed buy the judge.

And as for paying for everything...that can be a double-edged sword.

Sometimes the pressure of realizing what kind of time committment a child is will make the NCP think twice abotu seeking primary custody.

As for your living arrangements, a judge in theory could order you to bird-nest. Baby lives in your two bedroom house, the parents swap.

Again, this is not, not, not, not, not a diy project.

Laymans take:

What you think is logical and fair may have little to do with the rules and how ones paid gladiator play the various options.

If he is smart--he is buying time to get an order in place which favors his views --while you are distracted by being nice.

It think the even smarter move is to keep talking as if nothing has changed--but say nothing in reality  --and you make a bee line for paid counsel like yesterday--and keep all your stuff secret except with counsel.  If you break off regular contact he will probably sense a race for position is on. You want to get ahead before he knows you passed him a mile back.

There are some state specific issues about relocation --and some things may not trigger a need for court anything in your state if you move INstate and do so very quickly before any custody order is in place but you discuss rules and strategy with your lawyer --PRONTO.  There may be extreme flexibility before the court steps in with an order

There is probably a major edge to having status quo be major time with you--and I think its nights that count--not hours--in any case--max up your nights-it won't hurt