First of all, until you get some kind of settlement or court order, the legal default is that you have joint legal custody.
She can't refuse for no reason. She would have to demonstrate that it is in the best interests of the child, and especially since you both work and the child is in daycare, she will have a nearly impossible time doing that.
In other words, what happens if you refuse to give her custody? Why are her rights trumping yours? In fact, the children's rights trump everyone else's, and they have a right to have a relationship with both parents.
Calculating time can be tricky. One judge may do it by days, another by hours. Daycare hours can go either way. I argued strongly (although it wouldn't have made much difference) that school/daycare hours counted with the parent that dropped off in the morning, because if the child was sick or there was a holiday, the child would stay with that parent for the day. If the child was sick halfway through, the dropoff parent would be called. You have to tailor your arguments to your situation.
At the age of your child, I would say that you probably want to do something like 3 days/3 days, and then a swing day, so there isn't too much time apart from either parent. Older, a week on/ week off can work fine but IMHO not at a young age.
You could also do 2 days, 2 days, and then alternate weekends. There are a lot of possibilities, it depends on you and your ex.
The best situation is if you and your ex just plain agree on 50/50, and then work the schedule out to your child's satisfaction and don't worry about a few hours either way. But you'd better have that carved in stone in the separation agreement.
I would say to do the following:
1) Don't move out until you have an agreement on custody
2) If she leaves and takes the kids, immediately go to an experienced lawyer and try to get an interim custody order of 50/50.
3) Read the books I've recommended and think through your situation
4) Sit down with your ex and the kids and explain the separation, and stress that it isn't their fault and they will stay with both of you as their parents
(This might not be possible with the child that is not your own, you need to decide what will happen there with your ex).
5) Arrange separate living arrangements. If it is a large house, you might consider splitting up and one of you stay upstairs and one downstairs. It depends on how amicable you are. When you split formally, make sure you arrange the 50/50 custody. It is not manipulative to include the kids in this discussion. The kids will want to spend time with you equally, that is the easiest decision for them.
6) Right now, while you are together, is the time to ensure that you are already "shared parenting". Stay involved with the kids, take them to daycare, pick them up, go to the doctor's, the dentist, arrange playdates, spend time with them in the evenings. Most of us have found that we are actually better, more involved parents after the split than we were before, even if we were great before.
7) If you have any joint accounts, close them. Freeze joint debt or line of credit or credit cards. Start collecting up bank statements, copy mortgage docs, life insurance, etc. Get as much as you can. Make copies, leave copies for your ex, and probably don't be too obvious about this, it will inflame things, but it needs doing.
8) Again, read the books I mentioned, it won't just help you separate with your ex, it will help you navigate the system and keep control over your lawyer
9) You will need a lawyer, even if just for a few hours for a consultation and a couple of documents and signatures. You need to know what you are doing, so you pick the appropriate lawyer and keep ccontrol of the process.
10) Talk to your doctor, see if you can arrange a referral to a therapist. As this goes on you will experience a lot of different emotions, and you will need some kind of help. Even if you are fine right now, you will need help later, so make the arrangements now.
She can't refuse for no reason. She would have to demonstrate that it is in the best interests of the child, and especially since you both work and the child is in daycare, she will have a nearly impossible time doing that.
In other words, what happens if you refuse to give her custody? Why are her rights trumping yours? In fact, the children's rights trump everyone else's, and they have a right to have a relationship with both parents.
Calculating time can be tricky. One judge may do it by days, another by hours. Daycare hours can go either way. I argued strongly (although it wouldn't have made much difference) that school/daycare hours counted with the parent that dropped off in the morning, because if the child was sick or there was a holiday, the child would stay with that parent for the day. If the child was sick halfway through, the dropoff parent would be called. You have to tailor your arguments to your situation.
At the age of your child, I would say that you probably want to do something like 3 days/3 days, and then a swing day, so there isn't too much time apart from either parent. Older, a week on/ week off can work fine but IMHO not at a young age.
You could also do 2 days, 2 days, and then alternate weekends. There are a lot of possibilities, it depends on you and your ex.
The best situation is if you and your ex just plain agree on 50/50, and then work the schedule out to your child's satisfaction and don't worry about a few hours either way. But you'd better have that carved in stone in the separation agreement.
I would say to do the following:
1) Don't move out until you have an agreement on custody
2) If she leaves and takes the kids, immediately go to an experienced lawyer and try to get an interim custody order of 50/50.
3) Read the books I've recommended and think through your situation
4) Sit down with your ex and the kids and explain the separation, and stress that it isn't their fault and they will stay with both of you as their parents
(This might not be possible with the child that is not your own, you need to decide what will happen there with your ex).
5) Arrange separate living arrangements. If it is a large house, you might consider splitting up and one of you stay upstairs and one downstairs. It depends on how amicable you are. When you split formally, make sure you arrange the 50/50 custody. It is not manipulative to include the kids in this discussion. The kids will want to spend time with you equally, that is the easiest decision for them.
6) Right now, while you are together, is the time to ensure that you are already "shared parenting". Stay involved with the kids, take them to daycare, pick them up, go to the doctor's, the dentist, arrange playdates, spend time with them in the evenings. Most of us have found that we are actually better, more involved parents after the split than we were before, even if we were great before.
7) If you have any joint accounts, close them. Freeze joint debt or line of credit or credit cards. Start collecting up bank statements, copy mortgage docs, life insurance, etc. Get as much as you can. Make copies, leave copies for your ex, and probably don't be too obvious about this, it will inflame things, but it needs doing.
8) Again, read the books I mentioned, it won't just help you separate with your ex, it will help you navigate the system and keep control over your lawyer
9) You will need a lawyer, even if just for a few hours for a consultation and a couple of documents and signatures. You need to know what you are doing, so you pick the appropriate lawyer and keep ccontrol of the process.
10) Talk to your doctor, see if you can arrange a referral to a therapist. As this goes on you will experience a lot of different emotions, and you will need some kind of help. Even if you are fine right now, you will need help later, so make the arrangements now.
