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My DH and I are together still, but it is not going great, to say the least.
I work FT, he looks after DS (18m) on a Monday and picks up DD (3) from nursery on Mon, Tue and Wed, on the first two days the pick up is at 3 on Wed at 11.30. On Tue, Wed, Thurs, Fri DS goes to a CM and on Thurs Fri my DD goes to the same childminder.
He quit his job just over a year ago because he wanted to spend more time with the children, he now works flexibly and from home. When the children are ill, he is usually the one who stays home.
This is what we agreed and this is what he wanted.
Now a year in he realises that looking after children is hard work and is, I think, happy to spend more time with them, but also finds it hard work. I am sure every parent with kids these ages can agree to this.
I am now wondering, if we were to get to a divorce, which I hope doesn't happen, would this mean he would get 'custody' or residence, or whatever it is called? I would awful if that happened and it would just be based on the fact that I earn more and therefore it made sense for me to carry on working and the fact that he wanted a life style change. In Sept I went back to work after mat leave and told him I wanted to go down to four days, but he wasn't keen, saying we would lose too much money. If the kids were to live with me I would go down to four days, perhaps hire an aupair (DD is going to school in Sept) or find some good childcare arrangement.
What do you think? Would a judge give me residence over my husband? Arguably he has been the primary carer since September … Or would the mother still have an edge simply because she is the mum and the kids still so young?
The majority of parents who separate don't have to ask the courts to determine the arrangements for the children because they sort it out themselves and therefore don't have "custody" or residence order" labels applied to their situation. The courts in fact longer use the terms residence or custody but "child arrangements" "lives with" and "spends time" with because of trying to move away from such labels. Shared care arrangements are very commonly made now. Is there any reason why there would be a dispute and a fight to establish a primary carer if you separated? With some tweaking about where the children are overnight is there any reason why the current arrangements wouldn't keep working if you separated?
If your DH tried to restrict your time with the children then he would need to evidence welfare concerns.
In a situation like yours I would expect a shared care arrangement to be made by the courts in a dispute where you both spend significant time with the children in a way that suits both your working parterns. That is the approach courts take where there are no welfare concerns.
Unfortunately as financial support is linked to the amount of nights the children spend overnight with each parent then it does sometimes become a battle ground for that reason rather than flexibly considering what works best for each family.
I would add though, if a parent is available to care for a child, a court wouldn't expect them to be placed in childcare instead
in answer to your question you wouldn't get "the edge" purely because you are the mother. as PP have said it doesn't need to go to court if you can come to an agreement regarding the children. However you seem to be suggesting that should you separate you would wish the children to live with you as their primary carer. Given that their dad seems to do more than 50% of the day to day currently I am not sure how a judge would view this should you not come to an agreement and have to go to court. your argument that it's not fair because you earn more hence why you were FT isn't going to help you. as Familylawsolicitor says a shared care arrangement is much more likely in your situation. if you want to argue otherwise and have the children live with you only then you would need to explain why this is in the children's best interests given that this is not reflective of your current arrangements.
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