Child Custody and Job Concerns

Do you have questions about child custody and job issues? 

By WomansDivorce | Answers by Brette Sember, J.D.  

Will your type of employment or erratic work schedule effect custody? While a parent's work schedule can be a factor in a child custody battle, the court will look at the overall situation. If you're wondering whether your job could impact the custody of your children, keep reading to find out what the legal expert says.

Will the fact that I don't have a job affect custody?

Stacey's Question: The day I went to take the papers for a divorce, I lost my job due to production quota. I was afraid that without a job I wouldn't get custody of my child. But the mental abuse towards both of us is getting worse every day, so I am going on with the divorce. I recently paid all my bills off so I could stay home awhile with my daughter. Will the fact that I don't have a job hurt me in court?

Brette's Answer: Custody is not determined based on who has a job and who doesn't. It is decided by looking at what is in the child's best interest. Children usually remain in the residential custody of the primary caretaker, unless there are circumstances that make that a bad choice. If you provide a better home and environment and relationship with your child, you will get custody.

Can he get custody if he makes more money than me?

Amanda's Question: Can my ex use the fact that he makes more money in court for custody?

Brette's Answer: It should not have any effect on custody, which is determined based on which custody arrangement would best serve the interests of the child. A huge income disparity might have some impact since the moneyed parent could offer many more opportunities, but in most divorces, it is not significant enough to have an impact.

Will it affect custody if I work as an exotic dancer?

Jennifer's Question: I am an exotic dancer, go to school, and take care of my children. Will my job affect my custody chances?

Brette's Answer: It shouldn't unless your job somehow impacts your kids - putting them in inappropriate situations, with people who are bad influences, etc.

Is shared physical custody practical if he works nights?

Rose's Question: We are getting divorced and he is fighting me for joint custody (legal and physical) of our three years old. Now, from what I understand, he would have to prove that I am a bad mother to be able to take him from me, right? And my husband also works nights and sleeps all day, so how would that even work?

Brette: The court does not favor or presume either parent is naturally being a better parent. The court takes into consideration all the circumstances of the situation and makes its decision based on what will be best for your child. Your husband's schedule at work would certainly be an important factor in the custody decision. However, there are many parents working the third shift who have custody of their children. A parent's work schedule is just one factor in the custody decision. You should speak to your attorney about the situation. It might be useful for you and your husband to go to mediation. You could sit down with a neutral mediator and see if you could find a solution that would allow both of you to have time with your child, in a way that works for everyone.

How can we do a shared parenting plan around his erratic schedule?

Gretchen's Question: I am considering shared custody with the father of my children. However, his work schedule is in constant flux. He works many hours for several weeks and then will be laid off for several weeks (he's a construction worker). How can we build a shared parenting plan when we do not know what his schedule is?

Brette's Answer: In this situation the parents need to cooperate. There are a couple ways to approach this, but it's hard for me to give specific advice without knowing the details of the schedule. You could build one schedule that works when he is laid off and another for when he is working. If his hours when he works are not regular, then you could agree to talk once a week to plan the schedule for the following week. You could also consider alternating entire weeks - you have the kids when he is working and he has them when he isn't.

Wouldn't rotating custody be disruptive if my ex is a shift worker?

Jen's Question: My ex-husband is a shift worker, 24 hours on and 72 hours off. We have two little boys, 6 and 3. He wants to have custody of the boys for two days then I have them for two days on a rotating schedule. This seems excessively disruptive for the boys in my opinion. What's your advice?

Brette's Answer: It can be hard for kids at that age and can make school difficult. But it does work for some families. If you could get a schedule where you could at least say these days of the week are yours and these days are mine, that is a little easier to cope with.

Can he change custody if he works swing shift and his mom babysits?

Rosalyn's Question: I initiated mediation for a minor adjustment in custody. My ex gets back that he will change the whole entire schedule and now wants more time (4 day for him and 3 days for me). We have joint custody. He just changed his schedule to swing shift from nightshift and he’s mom is going to be around to take care of our son (I am available at that time). Will that change our custody?

Brette's Answer: He can ask for anything he wants, but these decisions are made based on the best interests of the child. You certainly do not have to agree. In general, courts prefer that children are with parents when they are available instead of sitters or other family. 

Can he get joint custody revolving around his work schedule?

Rosemary's Question: My spouse works a 5 on 4 off schedule and I work Monday to Friday. He wants to have our child only on his days off so that he won't have to pay for daycare. This means our child would not have a regular schedule. I have to pay daycare when our child is with me while I go to work. I say if he wants JOINT custody we can go one week on and one week off. He says he doesn't want to pay daycare and due to his schedule sometimes daycare is not an option (when he is nightshift). Will a judge force me to only work around his work schedule? Along with his work schedule he will not be paying child support as he will have her 50 percent of the time. His income a little bit more than mine.

Brette's Answer: In this situation, the court generally prefers for children to be with parents rather than caregivers, but courts also like to establish routines for children. It would be unlikely that the court would give your ex time when he is at work at night if he has no one to care for the children. There will likely be child support and sharing of day care expenses in your situation. You should get an attorney who can help put together a proposed schedule you can both live with.

Should we change the schedule due to his job loss?

Carin's Question: I share joint custody with the father of our 2 year old. It is on a 4/3 schedule due to his job. He now lost his job and is looking for a new one. Can I take him back for full custody since he won't be working the same schedule, or does it not matter as long as he is off nights to have him?

Brette's Answer: Since he is not employed, he has even more time available, so you need to be careful - you don't want him asking for and getting more time. If you don't like the current arrangement, you could certainly ask to try something else. If he is going to get a new job soon, it might make the most sense to wait and see what his schedule is going to be like and then rearrange things at that point.

Do I have to take the kids to daycare if I'm not working?

Meredith's Question: Our divorce papers say we are to split childcare costs 50/50. I am not working now, so can I just start keeping the children at home on my days, instead of taking them to a before and after care?

Brette's Answer: If you are not working you are not required to send your children to daycare. Courts generally prefer that children spend time with parents when possible.

Should he get custody because I work the night shift?

Amanda's Question: We share custody of our 5 year old son, but technically he lives with me and goes to school nearby. I work nights, but his Dad won't help pay for child care costs while I'm working, saying that our son could stay with them instead. He's been having behavior issues lately, and my ex blames it on my inconsistent schedule. I usually have extra shifts on the weekends, so he stays at his Dad's when I work. His Dad also has him during the summer so I don't have to pay for daycare. I get to go on vacations 3 times a year with friends (it's a tradition). Since I have to save up for the vacations, I don't have a lot of money for daycare.

Would I be able to get any child support since he spends so much time with his Dad? He says that I wouldn't get any because our son wants to live with him and go to school there. This is probably because he has his own room at his Dad's house, and has to share a room with my sister here (she takes care of him sometimes). My ex says I'm being selfish and not putting our son first because technically I only have him for about 20% of the time (the rest of the time he's at daycare or with other family). He says at their house our son will have the structure and stability he needs and that I can have him whenever I want, but I want my son to live with me. Is it selfish of me to feel this way?

Brette's Answer: I can tell how hard this for you by reading your email. Some single parents work nights and that does not make them unfit. However, the question always is what is best for the child? And I think that given what you have described, many judges would feel that living with the parent who works days would be best. I can't tell you what to do - custody cases are very complex. One important factor is what was your schedule like at the time this order was put in place? If you had the same schedule then as now and everyone knew going in that it was going to be like this, your ex doesn't have much room to complain. Would a change detrimentally affect your child? Some kids, especially special needs kids, have a very hard time adjusting to change, so that is also a factor.

I would suggest you sit down with a calendar and think about how it might work if your son lived with his father. Would you see him roughly the same amount of time? Can you see it working in a way that would make you feel satisfied? I think as a parent it is hard to deal with words like "residential parent" "nonresidential parent" and who the child "lives with." There's so much judgment implied in those terms. The key is to make an arrangement that gives your child the best situation possible. And to let go of the words that describe it. I assume you share legal custody with your ex and that would probably continue. As far as child support is concerned, you will likely have to pay support if your son goes to live with his father, which may be a key reason you may not want to do this.

I know this is a difficult situation to face. As for whether you could receive child support in your current situation, it does not sound likely since you have a 50/50 split, which sometimes seems to tip towards more time with the other parent. If I were you, I would definitely NOT mention anything about vacations with friends as impacting your financial situation. Good luck.

I might lose custody if I can’t attend their doctor visits due to work.

Rachel's Question: The judge said he could take my children away because I can’t attend weekly appointments and the court ordered me not to miss another one. Ex schedules appointments during my work hours and judge gave him medical authority. What can I do? I am paying his attorney fees even though I couldn’t afford one for myself and filed my papers by myself.

Brette's Answer: You should keep records that show your work schedule and the appointment times.  If at all possible find a way to get an attorney. Check with your local bar association to see if there is a volunteer lawyers program or legal aid you might qualify for. 

Could he get full custody because I work so many hours?

Yalinda: Could my husband get full custody of my kids because I work so many hours and don't see them very much (just on the weekends)?

Brette's Answer: It's possible. Courts usually prefer that kids be with a parent rather than in daycare.

Can I get more time with our child if I work fewer hours?

Dayana's Question: If I work less hours than my ex, can I get more time with our child?

Brette's Answer: Custody is decided based on a wide array of factors. Each parents' schedule is a consideration but is not the only factor.

Brette 144x162Brette Sember Family Law Expert

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