Shared Custody (60/40) by Overnights or Hours?

[minefield]

I was married for 7 years and we separated around October 2010 and after making some initial arrangements I moved out of the matrimonial home on January 1, 2011. My ex makes 60K per year, and myself 20K but I opted initially to forgo having the ex pay child support as a peace offering and to keep stress levels low, even though it does cause me some stress. I have since up'd my income to about 30K per year. The ex also sold the matrimonial home, with my permission and a mediated agreement, and still owes me the proceeds. More on that a little further down.
My ex and I agreed that I'd have the kids (2 & 4 year old) from Sunday at noon until Wednesday at which point they were dropped off at daycare/school and that started the day I moved out - except for the first two months where we were little more flexible to ease the transition for the kids. This arrangement has been fine, except that my ex believes that I don't meet the threshold for shared custody (i.e. I don't meet the 40% threshold, even though I think I do) and can arbitrarily decided when I can see the kids - ie. change pickup and drop off times. I have been pretty firm in sticking to the status quo and there has been no change yet, but there is a lot of pressure from the ex to get the times changed. This has just started to happen.

Our mediator has agreed with me, that 3 nights is shared. My ex has started counting hours and thinks that when I drop the kids off at school / daycare it automatically becomes her time. Also, we, as a family, would visit my parents twice a month on Sunday evenings and now my ex has retroactively decided that the time at my parents is "shared time", again inching the hours closer to less than 40%. Also, anytime we make arrangements for work (i.e. I had to travel twice last year and dropped of the kids on the Tuesday night, so now the ex is counting those nights, even though I've repaid the favour at least three times).

One of the issues is that because the ex isn't paying child support, we agreed that when we visited my parents we'd just meet there (travel time), which now seems to count for her time. The original goal was to save me a bit of money on transportation costs as I live about 25 minutes from the ex and it would require me to back track.

Obviously this sucks because I wanted these Sunday's as time where my ex and I could spend with the kids and the kids could enjoy having both parents in a comfortable environment. But now I can't risk the ex convincing a judge that based on nitpicking of the hours, they have full custody so now it is just me and the kids visiting.

Now as I said earlier I haven't collected child support, but with the ex developing a plan it looks like there will be an attempt to get retro-active child support from me. The problem is that the ex went on a spending spree after we separated and has basically used up all the money (new house, new car, new furniture, TV, iPhone, etc.). Also, in our mediation agreement there was some ambiguous phrases that made my ex believe that I'd be paying child support. Not really true, as from the start I believed that I had shared custody and the ex would be paying. Additionally, I gave my ex the $100 childcare tax credit to help with daycare costs (2yr old goes on Wed/Thu/Fri and stays home with me Mon/Tues). Yes, I'm the lower income earner, but I reasoned that $100 per month is a small price to pay for peace and quiet as well as avoiding lawyers. Not so I guess.....

So here's my question: do judges typically count hours to determine custody or can they look at the big picture (i.e. I have 3 nights, get my son ready for school 3 days per week, share my family, no child support to pay for daycare, etc.)? Does 3 nights truly count as shared?

Additionally, I'm thinking that it might be a good idea if I had the kids every other Saturday night (starting at 5:30PM) (basically 4 night / 3 night split) but the ex doesn't want to budge on time as that would ensure we have shared custody. How hard would it be to get a judge to agree to the alternating Saturday nights?

I think a lot of this is from "friends" giving the ex uneducated advice causing a decent separation to go to hell. But it could also be the more one gives the more the other takes.

[billm]

Couting hours is rare, and you are right in that you ex's hour counting method is unfair anyway.

You have the kids 3 nights of 7 which is 42%, and you want to add every other Saturday - you want 50/50 and that is in the best interests of all involved.

Your ex owes you retro CS according to your schedule. Your mediated agreement - what did you agree to regarding access and support?

I don't know what you agreed to, but the best is to have a clear precise wording that you are equal parents and have equal time with the kids, and that offset CS is paid every year based on the previous years income. Anything else will lead to trouble.

Not that court is fun, but if you went there, you would win 50/50 or at least status quo (42%), and the ex would have to pay you CS - no agreement can stop CS from what I have learned here. Your ex is not on solid ground.

[miragesailor]

What if you have been doing things as shared custody for over two years while everything is sorted out through lawyer/court, but paying more support than the fair off-set amount. Does that mean you have a good case for "over payment" when all is settled, or do you have to eat that loss because you voluntarily paid more than you should have?

[billm]

I am not sure, but your ex themselves opened up the issue by seeking retro CS.

So she can seek retro CS - they have admitted that is valid, and you can too. My ex is also seeking some retro CS stating that my income was not accurate.

I don't know if it is valid as there was full disclosure and we both thought we were using the right numbers at the time. Given that there is shared custody, forcing one parent to pay retro CS, which will not help the kids as that time has passed, but may hurt the kids in that the retro paying parent may not have enough money to support kids and pay the retro.

[minefield]

Thanks Billm. Even though 50/50 is fair, and best for the kids, my ex would disagree in many different and interesting ways. As for our agreement, we never formalized it as we knew a lot of change would be happening (son starting school, ex moving to a new home, me deciding whether to stay in my rented house, etc.) so we verbally agreed to honour the agreement until things settled down a bit. Part of the reason was that I didn't have any money for a lawyer and it seemed like a waste since we'd need to redo the agreement in 6 months anyway. And it would have been a waste because everything was going well until November. That's when everything started falling apart.

When I did the calculations for CS based on the table amounts, kids expenses being factored in, etc. it comes out to about $250-$300 per month for the first year being paid to me. My income is rapidly increasing so I figured if I toughed it out for the first year it would help the post seperation stress.

The problem I'm having right now is getting my ex to discuss the modification of the agreement. Our original agreement even states that we'd need to modify it when our son goes to school and for the past month she's steadfastly refused to talk to me about it or go back to mediation. That means I might have to go to court, which I really don't want to do. Part of the reason is that my ex has cPTSD and has anxiety and depression. Going to court isn't going to help those conditions, especially if the judge comes down hard on her, and in reality it will affect the kids. But I can't always be limp noodle.

And I agree on the retro CS that it is more likely to hurt the kids than benefit them. I've even offered my ex a free ride on the 2011 CS.