You should consult with a family law attorney to plan your course of action in moving forward. I would recommend first petitioning to modify the current custody order. If your ex is in agreement (which may be an issue in of itself), then the order will be modified to grant you primary physical custody. If she is not in agreement, you will have to litigate this issue. Once the custody has been determined, and if you are granted primary physical custody, at that point, due to the change in custody, it may benefit you to petition for a reduction in child support. However, without knowing your financial information (your income, your ex's income, cost of medical insurance to cover the child, additional expenses of the child, extracurricular expenses of the child, the current custody schedule, including overnights, and how much the custody schedule would change if you became the primary physical custodian, etc.), I cannot answer your question without this information. If the custody schedule does not change much (i.e., overnights), and depending on your income & your ex's income, you could still, in certain situations, be required to pay child support. Just because you would be the primary physical custodian is not dispositive! Support is determined via the use of the Guidelines. Custody is one factor/variable that is considered in the Guidelines. It is also possible that your ex would be required to pay child support to you if you become the primary physical custodian, but, once again, this is Guideline-based, and your incomes are key to answering this question. Therefore, again, I would advise you to consult with a family law attorney to be advised.
I reccomend meeting with a family law attorney to assist you with your questions and go over the support guidelines with you. To answer your questions, you would file the custody petition first. If successful, you would then file the support petition. Even if you end up with more then 50% of the time, you may still pay support to the other parent based on the percentages of the combined incomeand the exact number of overnight visits.
If you would like to meet for a consultation, please feel free to contact me.
Charles A. Rick, Esq.
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