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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 05-17-2010, 11:21 PM
KevinMcK KevinMcK is offline
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Default Seeking clarity and understanding of "primary caregiver"

Hey all, thanks in advance to those that know this stuff inside and out.

I'm 20 months into a very long separation/divorce negotiation. Everything has been worked out save for her insistence of the wording "primary caregiver" to be attached to her, and "parenting time" to be attached to my name.

I have the kids in a mediation agreement three days a week, so as far as I know I make the 40% hurdle to be shared parenting.

I think she's trying to get this tag in order to avoid using her income on the child support tables when she eventually goes back to work.

My lawyer suggests I can let this go now, and then when circumstances change (she goes back to work), readdress it at this time so I can put this mess behind me.

Is there any other issues around this designation? Can she move with the kids to another city for example?

Thanks in advance as I say.
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Old 05-18-2010, 09:02 AM
billiechic billiechic is offline
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It does give her a little advantage, but if you have the kids more than 40% of the time and only pay the offset amount of CS then that arrangement would hold more weight.

If that is all that is holding you back from signing, you are probably ok to let her have it. But you might want to suggest using the primary residence instead. That implies that in the case of schools, doctors etc her address would be the one registered. It doesn't give any advantage to her then.

what you need to be clear is that you have joint custody. You want to be equal in all major decisions. That is the best way to make sure she cannot move the kids, or make a decision you don't agree with. It also means that you can't just move as well.
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Old 05-18-2010, 09:07 AM
KevinMcK KevinMcK is offline
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Quote:
Originally Posted by billiechic View Post
It does give her a little advantage, but if you have the kids more than 40% of the time and only pay the offset amount of CS then that arrangement would hold more weight.

If that is all that is holding you back from signing, you are probably ok to let her have it. But you might want to suggest using the primary residence instead. That implies that in the case of schools, doctors etc her address would be the one registered. It doesn't give any advantage to her then.

what you need to be clear is that you have joint custody. You want to be equal in all major decisions. That is the best way to make sure she cannot move the kids, or make a decision you don't agree with. It also means that you can't just move as well.
Thanks for getting back to me, really appreciate it!

1. She has no offset on CS right now as she has no salary, and is planning on going back to work for two years (so won't have an offset for 30 months or so). I think her angle is to avoid any income that she starts to earn then being subject to the CS tables. Is that what you meant?

2. Not sure what you mean when you said "using the primary residence"

Thanks again
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Old 05-18-2010, 09:55 AM
HammerDad HammerDad is offline
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Quote:
Originally Posted by KevinMcK View Post
Thanks for getting back to me, really appreciate it!

1. She has no offset on CS right now as she has no salary, and is planning on going back to work for two years (so won't have an offset for 30 months or so). I think her angle is to avoid any income that she starts to earn then being subject to the CS tables. Is that what you meant?
If and when she starts earning an income, it will be factored into the grosse "family" income and your c/s will be reduced accordlingly. The wording does not have any effect on this.

Quote:
2. Not sure what you mean when you said "using the primary residence"

Thanks again
The wording "primary caregiver" would be more reflective in decision making. Her, being the "primary caregiver" would have more ability to make material decisions regarding the child. Schooling etc.

Changing it to "primary residence" takes the emphasis off of her as the more important parent, and puts the focus on the house as where the child lives most of the time. It equals out the notion that you are also a "primary caregiver" to your child. The child may live with the ex most of the time, making your house the childs "secondary" or "alternative" residence (although I don't like either of those terms), which is in fact more true.

It is a matter of perception. Do you want to be looked at as the "parenting time parent" while she is the "primary caregiver"? Or do you want it to look like it is just a housing matter, with her having the primary residence?
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Old 05-18-2010, 10:23 AM
billiechic billiechic is offline
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If she is choosing not to work (especially with the intention of not earning and thus not paying CS) then she is playing you. Don't let her do this. You can impute an income on her and you would the calculate CS as if she was making this wage. Ususally this would involve looking at what she was earning before the separation, what he skills could be applied to, or at least minumum wage at FT hours. BUT imputing an income is a big deal and you want to use this as a negotiation tactic, and a last resort. It probably won't make a huge difference now, but she needs to be financially responsible for her children as well. It's only fair.

Like I said, you need to have the word custody in your agreement. She is sneaky and using terms to imply that the parents are equal, but it needs to be spelled out. She wants custody, she want decision-making power. "Primary caregiver" does not apply in this case and if you let her have it she will argue that means she has custody. The more vague you let the wording be, the more likely you will end up back in court.
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Old 05-18-2010, 10:51 AM
HammerDad HammerDad is offline
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Quote:
Originally Posted by billiechic View Post
If she is choosing not to work (especially with the intention of not earning and thus not paying CS) then she is playing you. Don't let her do this. You can impute an income on her and you would the calculate CS as if she was making this wage. Ususally this would involve looking at what she was earning before the separation, what he skills could be applied to, or at least minumum wage at FT hours. BUT imputing an income is a big deal and you want to use this as a negotiation tactic, and a last resort. It probably won't make a huge difference now, but she needs to be financially responsible for her children as well. It's only fair.
Agreed

Quote:
Like I said, you need to have the word custody in your agreement. She is sneaky and using terms to imply that the parents are equal, but it needs to be spelled out. She wants custody, she want decision-making power. "Primary caregiver" does not apply in this case and if you let her have it she will argue that means she has custody. The more vague you let the wording be, the more likely you will end up back in court.
Just as an aside, the courts and the legal field are getting away from using the term "custody" and "access" in agreements and orders as a means of getting away from the connotation that comes with the words. They are starting to use "parenting time" instead of access and "primary parent" instead of sole custody. It is more due to stigma of being an "access parent", and that it is somehow less of a parent then the "custodial parent".

So long as the agreement is pretty clear on roles and is well worded (ie. clear on your being able to attend and be involved in all major decisions of the child), I think not having "custody" in it benefits you. It eliminates the idea or feeling of possession that "custodial" parents get.

I have to deal with a lot. My ex loves calling me an access parent and somehow making herself appear more important she is the one with "custody".
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Old 05-18-2010, 10:57 AM
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tugofwar tugofwar is offline
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Im alittle confused...
If you have full custody of a child and the other parent still has the child over 40% of the time, does that mean there can still be a deduction in child support?
I thought that only implied if you have shared custody and I heard in some cases joint custody can reduce the amount also.
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Old 05-18-2010, 11:05 AM
KevinMcK KevinMcK is offline
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thanks for the clarity ...

I think she is angling for NOT having to use her income for the tables when she does get a job. I think it would be left to me to reopen the case in two to three years time when she has a job (section 9 I think?) in order to make things more equitable.

My lawyer gets the feeling I should just say "OK", and get this closed up as the legal costs and time just continue to mount.

It might be easier to fight this issue in three years when it matters and she's on the hook for her own legal fees.

Thoughts?

(this is such a great service guys, I have a laywer, but a second opinion is so nice to have)
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Old 05-18-2010, 11:31 AM
billiechic billiechic is offline
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If your intention is to get this over and done with, and save costs, then your lawyer is right ().

The question is...do you want to be involved in making the major decisions for your child (schooling, health, religion, where to live). If you want that, you can't let her have the title "primary caregiver". (my apologies, I wasn't aware that the court has actually imposed a meaning in relation to custody towards the term). To give her that advantage now means you will never get it back, regardless of what happens in the future.

It's not an easy decision to make, and I urge you to take a few days to really think about it and realize what the consequences of both options are. This may be one of the biggest decisions of your life and you don't want to be hasty.
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Old 05-18-2010, 11:34 AM
billiechic billiechic is offline
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Quote:
Originally Posted by tugofwar View Post
Im alittle confused...
If you have full custody of a child and the other parent still has the child over 40% of the time, does that mean there can still be a deduction in child support?
I thought that only implied if you have shared custody and I heard in some cases joint custody can reduce the amount also.
Yes. CS has nothing to do with custody, it has to do with time spent with each parent. A good thing too, I'm sure there would be more custody fights if CS was based on custody.
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