1- "Right of 1st refusal" (or whatever it's called where you are) is pretty common. I.e., ANY time the parent caring for the kids needs childcare, the other parent is legally entitled to provide it (if they're willing and able), before the kids may be left with someone else. (Of course there are usually qualifiers meant to prevent abuse, like time limits [visiting relatives for a few hours doesn't count as "childcare"] or excluding household members [leaving kids with a stepparent while a parent runs to the store isn't "childcare"].)
Let's say you agree to 50-50 time, but your ex never actually exercises it, because he blows off visits and you cover his childcare needs. You'll still enjoy more time with your kids. And, in future, if you feel your overall arrangement isn't working out, you'd have a strong argument for the court to modify it. You'd look cooperative for having agreed to the 50-50 split. It would seem obvious you weren't out to restrict your kids' relationships with their dad. And (provided you keep detailed records!!!) your ex would have to admit he had every opportunity to exercise equal parenting time and couldn't/didn't pull it off. It would be hard for him to blame you for it not working out.
Now, I have heard of cases where mothers used their ex-husbands for childcare; the ex-husbands petitioned for custody modifications, to reflect the reality that the kids spent a majority of time with them; and the mothers successfully argued that this would wrongly penalize them for working and for complying with the father's right of 1st refusal. I.e., the hours Dad covers Mom's childcare needs should still count as Mom's parenting time. Otherwise, she'd be better off putting the kids in daycare, so her ex couldn't use those extra hours with the kids against her, in court.
However, I think a father would have a harder time prevailing with such an argument. Besides, in your case, there's a history of the kids spending more time with you AND he skips visits. So, he won't look (to a judge) like a responsible dad who's cooperating by letting you care for the kids when he needs childcare. It will appear that, despite your 50-50 agreement, you two ended up maintaining a pre-existing arrangement in which you were always the primary caregiver.
I think the bigger risk is you telling him to work out childcare on his own.
I understand the motivation! When my ex left me with 2-year-old special-needs twins, my mother thought I was criminally neglectful because I wouldn't send a suitcase of diapers, extra clothes and toys, when they spent Saturdays with him. But, he was their dad, not a babysitter! Besides, he'd made countless remarks equating at-home parenting with "sitting on one's a**, doing nothing" and he'd decided he no longer wanted to raise our kids as a team. He flat-out did not deserve my help with his parenting time and ought to experience what caring for our children entailed!
Luckily, my gamble paid off. He did become a parent, whereas he might easily have never progressed beyond feeling like a sitter or an uncle. And over the years, he's said many appreciative things, recognizing everything I do for our kids. That has helped us get over all that prickly break-up stuff and be friends, instead of our kids dealing with constant conflict. But had we gone to court, evidently my mother was right and I would've looked bad for not sending provisions for his parenting time.
It's not hard to find childcare. If your ex does - and it helps him get into a good groove of regular visits - then he will look responsible and it will appear that you didn't want the extra time with your kids, even though you were home. And that's not really what you want, is it? At the heart of it all, you sound like you want the parenting time more than you want to give your ex what he deserves. That's the right instinct. Listen to it.
2- No method of dividing your kids' time between their parents is "best" for them. The "best" things would be if the parents were able to get along better and not divide their home. Apart from that, it's bad for kids to spend half their time away from their mother. It's also bad for them to spend less than half their time with their father, in order to see more of their mother. IMO, usually the least evil is for preschoolers to spend a greater majority of their time with their mother, the younger they are; and for school-age kids to spend approximately half their time with each parent, so they feel like they live in both homes, rather than living with one parent and only visiting the other.
That said, I'm glad as hell my husband's and my exes can't make 50-50 work and all our kids spend most of their time in our home. What I reason is right would never feel right to me, as a parent. Hopefully, that's true for both parents, each wanting more than half-time with their kids. So I think one must focus on reason.
Reason tells me a man who slacks off as a parent may rise to the occasion and improve, once he finds himself deprived of the luxury of a wife who picks up the slack. If you give your ex the chance to spend ample time with the kids - and be in charge of their bedtime routines, etc. - he may surprise you, given time to adjust. If he doesn't, then you can modify the arrangement and his failure as a parent won't be due to you denying him any opportunities.
3- Abuse matters, of course. It's just hard for anyone to know for sure what "emotional abuse" means, to someone else.
My older posts give a sense of what it means to me. My step-son's mother is not simply a flawed person (like all of us) who sometimes hurts his feelings, speaks carelessly, loses her temper or otherwise does the wrong thing. She systematically manipulates him to believe things that aren't true and that hurt his relationships with those closest to him; and she encourages behavior and attitudes in him that drive others away and interfere with him acquiring basic skills he needs, to thrive as a person. Her emotional abuse is aimed at reinforcing an exclusive, needy relationship with him and the idea that only she can truly understand, support, comfort or bond with him. I do believe it's better for him to spend limited time around his mother, so she influences him less than his father does.
But sometimes one person calls another "emotionally abusive" because that person is less gentle, kind, unselfish or affectionate; has a significantly different parenting style; or is more demonstrative of normal, human emotions like frustration and anger. I'm sure there are things I've said to my kids - or times I've lost my patience with them - that other, more patient, moms would consider verbal or emotional abuse. And maybe they'd be right. But I'm not someone from whom my kids need protection or limited time. Only you really know if your kids need to be protected from your ex; or whether he's simply not as good a parent as you are.
Edited by VocalMinority - 2/16/13 at 11:35am