What determines who is the custodial parent?

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What determines who is the custodial parent?

Recently I agreed with my ex-husband to share physical custody of our 3 boys. After signing the parenting plan I found out that the courts only count full 24 hours spent with each parent as far as when they are counting percentage of time spent with each parent. The arrangement we have states that they are with me 4 days one week and with him 3 days, then the next week they are with him 4 days and with me 3. But the way the times of pick up drop off fall and with school hours, on the paper it says he has them 55% and me only 45%. Now he’s saying he’s the custodial parent. What can I do?

Asked on September 7, 2010 under Family Law, New Mexico

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Take the agreement to an attorney to review and ask what you need to do to set aside the agreement (you will need a basis to do so under the law).  It is a contract and contract law applies.  If you were not properly advised of your rights under the state laws parenting plan rules then you may have a shot at revisiting the issue depending on the circumstances surrounding the matter.  Do you have any other document that shows the intention was to share custody (compete custody and not just custody as to decision making)?   Witnesses to the agreement (which may or may not be able to be heard in this case)?  You need help from an attorney in your area.  Good luck.


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