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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 27011
Experience:  General practice of law with emphasis in family law.
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My wife and I are separated, were ready to file but she refuses

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My wife and I are separated, we're ready to file but she refuses to discuss joint custody. Her parents went through an ugly divorce when she was a child and her mother took off with her brother to another state. Her fear is that unless i give her sole custody she thinks I'd have a legal right to do something similar with our two children. She won't listen rationally to what joint custody would mean. I understand that if I fight her on this that it will get long and ugly and expensive to go through the courts. I really don't want to put my kids through this, and I'd like to salvage how we relate to each other down the roads since we'll always be tied together through the kids anyway.

She is approaching it from an emotional state, but I'm trying to weigh what it means to me legally. She said she'd let the kids see me whenever and wherever they want and would include verbiage that says she cannot move out of state or something without my approval.

She wants me to come over and discuss splitting our assets and setting a visitation schedule and everything else that would make this an amicable split. She's offering me anything in assets as long as I grant her sole custody. I'm less worried about my financial situation and more interested in doing what is best for my children (12 & 7) in the long run. She has an attorney that would write up what we discuss and she says she'd let me take it to a lawyer to look at.

I guess I have a couple questions:

What am I giving up by granting sole custody and becoming a non-custodial parent?

And if I go over there in in the next hour and we write this up is it considered an agreement? Do I need to make sure there is something in there that says pending review of my attorney? I don't plan to sign anything, but am I making a mistake in going to do this tonight?

Welcome and thank you for your questions


I am an attorney with more than 25 years of experience and look forward to providing you true and correct information in this regard


Please remember, I can only answer what you ask and so if you have follow up questions, please post them here for full and accurate information before rating. If there are no other questions in this regard then I thank you in advance for your positive rating

There are two types of custody. There is LEGAL and there is PHYSICAL


And so she could have sole PHYSICAL custody and you two could share the LEGAL custody. Having the legal custody means that neither of you can make life changing decisions that are not an emergency situation without the consent and agreement of the other. So for instance, the 12 year old comes home to her and says "I want to get a tat" AND she says OK. That cannot happen unless she first discusses it with you and you agree.


Now, if she has sole physical custody with the shared Legal custody, then you will be responsible for more of the child support. If you both share Legal and Physical then she would be responsible for some share of the child support.


And she is correct, if can be stipulated that she cannot move away with the children farther than a specified radius from your home which is generally 50 miles.

So if you are going to agree to the Sole Physical to her with the share legal, then I suggest you would want to have overnights in your visitation plan. Such as Friday from 6 pm til Sunday 6 pm - every weekend, every other weekend.


If you want joint custody, then tell her - you want to share the physical and the legal and that you will have the children from Sunday at 6pm until you drop them to school on Wednesday and then she has them until Sunday


Also work in the summer vacations, holidays, Mother's day she gets them, Father's day you get them with all birthdays alternating even and odd years.


So as to your rights - if she has sole physical - the only right is not seeing the kids as much as you'd like.


But as long as you share the LEGAL custody, all your parental rights remain


I hope this has been helpful. You can respond here if you need more clarification.


Customer: replied 4 years ago.

Thank you for the response. I'm supposed to be over there to begin discussing and write up how we'd like this split to go right now actaully.


So if I can show her your reply and we can write something up into the this agreement she wants me to write up. How binding is it? I don't want to agree to or sign anything that hasn't been vetted by my representation.



As long as you get everything reviewed by your local attorney and then any signatures in front of a Notary


Once filed with the court it is binding until either of you file a Modification to change the custody order that the court will issue based on your agreement.





Customer: replied 4 years ago.

And what she wants is Sole Physical and Legal custody.


If I agree to both those things I know I'd be giving up life changing decisions as well. Can we still agree on a vistation schedule like in your example? We can still write in that the kids remain within a certain mile radius of both parents? Am I seen by the state as abandoning anything to do with my children's lives by giving up legal custody?


She says she'd always consult with me on life changing issues. And I believe she would.



Yes - you can write it up anyway you want and as long as court feels it is in the best interest of the child, then I suggest they would grant an order based on your decisions.


There is no abandonment associated with this.


But again, I suggest you might want to consider not giving up the Legal custody.



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