X-post from r/divorce :

Long story short…. STBX cheated, we tried to work it out as we have two elementary aged kids. I called it off as she seem disinterested in putting any effort and seemed to still be intertwined with affair partner after a little over a year of failed reconciliation. We signed an MSA at beginning of separation l a year and a half ago, in which she had primary physical custody, I had every other weekend and one extra Friday per month. I kept the marital house and bought her out, and we have joint legal custody in that agreement. I have 21 days in the summer in conjunction with weekends in this agreement. That’s 79ish days total for me a year and the bar for shared custody in Maryland is 92 days.

I kept the marital home which is in the same town as their school. Bus stop literally steps from my house. We had been working out custody on our own and ignoring the agreement so we could both see the kids almost daily (that’s why it was purposely not specific , to reduce back and forth with the kids). I would take them to school and pick them up most days and last summer had them everyday. I couldn’t agree to 50/50 at the time of the MSA being signed because my job had a “return to work” scheduled and with an hour+ commute, I could not see how that would be possible long term . She also had a long commute, but she took on primary custody knowing our verbal agreement would allow me to help with the kids 100% during the period I was working from home and then at the very least I would help with the kids multiple times during the week because even with “return to work” I’d be hybrid (home two days a week).

I got a new job that was fully remote. I knew it meant increased child support even though nothing has even been court ordered yet. We got into a dispute over increasing child support reference that (pre divorce filing). She stopped letting me see them on the days we had verbally worked out(which was everyday).She slowly started keeping them before school/after school when I was suppose to have them. Then, when I asked her to make modifications to the agreement, to include on top of increased child support , the “right of first refusal” and document that a material change of her circumstances allow us to revisit custody, she balked and increased her withholding more. Without telling me, she got a new job that was fully remote and began to take even more of the time I had with My kids. When I asked why she’s not sticking to our original plan we had followed since the separation agreement was signed, she told me to “follow the agreement” and basically pulled the rugged out from me without notice. A few months later she moved to a new apartment 20 minutes away with her younger sister also living with her and changed their schools without my consent.

One misunderstanding I had with an MSA when I signed it is that as long as it is not court ordered, it did not matter for determining custody as part of the divorce. I thought that I would have the opportunity to fight for more time if my circumstances changed or the agreement no longer made sense as certain parts such as custody only applied to the “separation” and not the divorce. That’s partially true because since it was not court ordered, the court still needs to make original custody determination. But it’s more of a factor than i realized it would be.

So that slow drain of taking time from me went from me seeing them 5 days a week to not at all during the week over the course of 7 months. I filed for divorce with a claim to contest custody. She tried talking to me and asked that we work it out ourselves and that she would give me time back if I dropped the case. I told her I want to do mediation if the case is put on hold or dropped. She wouldn’t “agree” but she said “no way we are discussing anything while the court case is open. So I dropped it. I tried to schedule mediation but she then refused. A few weeks later she filed for divorce with a child support increase. I filed a motion to contest custody. Her lawyer tried to file a motion to dismiss the custody issue because we already had an MSA (signed and notarized but never court ordered or looked at by court). The county denied both her motion to enforce MSA and her motion to deny my custody case. At the scheduling conference two months ago, her lawyer tried to say all we need to discuss is child support and not custody , and the magistrate restated the MSA is just “one of 10,000” factors in a custody case and that they would not dismiss my motion to fight for it and the court had already informed him that initial custody determination has not been made by the court and that the case would not be dropped/MSA would not be enforced in lieu of mediation, trial, etc . Magistrate ordered mediation and scheduled temporary custody hearing and merits trial.

Upon trying to schedule the parenting plan mediation that the court ordered my lawyer emailed the mediator to set it up. Her lawyer emailed the mediator and said custody was not at issue and we only need to discuss child support. My lawyer replied that the court and magistrate have separately told them custody is at issue and no court order has been determined. Her lawyer fired off a response to my lawyer calling his litigation frivolous, that they would ask for lawyer fees for the nonesense we are putting them through trying to fight for custody when there’s already an MSA. And that she already gave up pension (which is almost nothing )and alimony for parenting time (yeah right) that I am now challenging.

Since she moved the kids to a new school “because it’s less travel on the kids”. I told her I can help and get them to school. I didn’t want to move their schools. Our current agreement (MSA) states she cannot just move their schools without us agreeing . She said too bad I moved and as the primary custodian (even though it’s up for debate it court), this is what I need to do. I tried to fight it with the school system but they said all they can do is suspend enrollment until there’s a court order, and that’s obviously bad for my kids so I said no to that.

She also introduced her boyfriend to the kids. I introduced my girlfriend as well , but this is someone I met after the separation. Her boyfriend is the affair partner from when she cheated during the marriage. I’m curious how a court would view that.

My pendente liete hearing is late October. I’m hoping the judge sees all these tactics and that they are trying to basically smother any attempt to fight for custody. I am hoping the temporary hearing could give me 50/50 considering she is using very aggressive tactics.

What are my chances to win 50/50 custody during the temporary hearing and then in general ? I understand that the the MSA, although not court ordered, will make it a challenging custody battle….but if that agreement was never followed until she decided it’s in her own legal best interest to enforce it with a contested case coming, how significant is it really? Because I feel like all other factors point to 50/50 custody bring in the best interest of the kids. Considering I live 15 mins away , work fully remote, and am still in the marital home with more than enough space,etc