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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 07-25-2013, 10:50 AM
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Default After 6 years of 50/50, ex wants sole custody.

Hey everyone,

We have had equal 50/50 custody for 6 years. Our child is now 10 years old.

My ex just sent me a letter stating she wants the twice a week exchange changed to week-on and week-off. For 5 years, that's also what I wanted in the best interest of our child, but she refused. Without going into details, things have changed, and I now feel the current schedule is in our child's best interest. So, I'd rather the status-quo continue.

However, she is threatening that if I don't agree to the week on/off, she will go to court to get full/sole custody of our child during the school year, and I will only see him on holidays etc.

I don't think she will get anywhere with this. She is making false statements to try and justify her action, but can't back them up.

However, she can start a Motion, and I know she will.

I am 100% confident our child would rather spend significant more time with me. So, I am wondering if the best strategy is to wait for her to bring this to court. Then, if she does, I request the OCL represent our child.

Thoughts?

Thanks in advance!
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Old 07-25-2013, 11:03 AM
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Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
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A judge is highly unlikely to make a major change in custody and residence at a motion hearing, because they will be going strictly by affidavits. There is no extensive questioning or examination. Such an applicaton would be referred to trial IMHO.

It is not possible to advise you without some knowledge of what she is bringing forth as evidence. Is it relevent? Is it fact based? We don't know. There is no way to say how worried you should be.

In general, this length of status quo would be hard to beat. Is the child happy, doing well in school? If the child is thriving, then the current situation can be easily described as being in his best interests.

Consider the mother's true motive here, what does she gain by this, if she is not seeking something the child needs? Look for this and prepare arguments around it.

All this being said, I think older children do well with week about, moreso than younger children. With older children, the consecutive days gives the parent the ability to actually parent. For example, if I ask my daughter to clean her room the day before she goes to her mum's it highly unlikely to get done. Following up on homework, enforcing grounding, etc. is harder to do when the switch is twice a week. These are much stronger issues at age 10 to 16 than they were earlier.
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Old 07-25-2013, 11:06 AM
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With 6 years of status quo, I would think she would have a very hard time changing that if your son is doing fine with the current schedule.

My guess would be that taking it to court is just an empty threat to try to get you to agree.

Why does she want the change?
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Old 07-25-2013, 11:14 AM
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Mess,

She will not be able to bring any evidence. Only lies. In fact, I could easily bring forth hard facts showing he should spend more time with me. Having said all that, we've spent a lot of time in court in the past, and her lies work for her, and my facts seem to never work for me.

Mess and OntarioMomma,

She is now engaged, and I expect is trying to build momentum to move our child to a new town about 30 mins away. So, even if I agree to the week on/off, she will not stop there.

She does not make empty threats. Irrational ones? Sure - ALL the time.
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Old 07-25-2013, 01:45 PM
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Hmmm...

I think there is something to this. If she is moving 30 minutes away that might be considered a change of circumstance and it wouldn't be unreasonable for her to want to change the arrangement.

However, how will the child get to school if they are 30 minutes away.

Consider going for sole custody yourself to keep your child in the same school perhaps?
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Old 07-25-2013, 01:57 PM
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Our agreement states our son will not change schools unless we both agree.
She will be moving well outside his school district. I am 2 kms away.

I had planned on waiting until he was about 12 to get sole custody. But, I agree - if she forces the issue - I may as well try. However, I would think the status quo would rule for now.
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Old 07-25-2013, 02:00 PM
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Why would you not agree to week-about? You will still have the same amount of time with your child, and as he gets older, in general longer stays with each parent are more workable than for very young children. as Mess said. If your ex is indeed moving (as she has every right to do), a week-about schedule will be easier because it will mean fewer long drives. As long as she doesn't interfere with keeping the child in the same school (a 30-miniute drive, if she does move, should not bring that into question), I'm not seeing what the problem is.

Does it have to do with the fact that she's now engaged and you don't like the idea of your son living half-time with her and the new dude?
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Old 07-25-2013, 02:09 PM
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For the first 5 years, I wanted week-about. However, over the past year, it has become clear that she can't handle him. I am getting unsolicited comments like; "I don't like being with Mommy more than 3 days, because then she gets mean and yells all the time."

So, I still want week-about, but this isn't about what is best for me.

Further, he was getting D's in French school so I hired a tutor to come twice a week (there are 2 days/week I always have him) and his D's turned into A's. (Ironically - his Mom speaks French. I don't.)

If it switches to week-about, then there will obviously be large gaps in getting his homework done.

Also, a week-about does not mean fewer long drives. It just lumps them into 1 week, instead of spread over 2.

I actually like the 'new dude'. He seems to have a calming effect on the 'environment' there. My son has made the comment; "I like it when ____ is around, because then Mommy never yells."
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Old 07-25-2013, 02:30 PM
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Okay, I get it that this isn't about the new dude (which was what I had suspected). Good for you for being positive and non-threatened about a new adult in your son's life. Not all parents respond that well.

From what you say, it sounds like she doesn't really have grounds to request to change the parenting schedule, other than her own convenience, and she sure doesn't have grounds for a vindictive bid for sole custody. So unless there are more factors which you haven't mentioned, just going about your business and letting her flap around with this and shoot herself in the foot seems like a reasonable strategy.
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Old 07-26-2013, 07:01 AM
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Quote:
Originally Posted by iceberg View Post
Would you mind explaining your 'quote'...Having said all that, we've spent a lot of time in court in the past, and her lies work for her, and my facts seem to never work for me.

And I suppose you document things?
Typically, she files tons of material full of flat out lies, and given the sheer volume, the judge assumes some of it must be true, even though I easily defend ANY issue she wishes to 'check'. It doesn't matter. I am already 'labeled'. Even when she gets caught in flat out lies with documented facts I present, she is never disciplined, and I am still 'the bad guy'.

The volume of her material usually prompts the judge to let her 'summarize' it first, even if it is my Motion. By the time her summary is done, and it is my turn to speak, all my time is spent undoing the lies, instead of moving forward.

Then she blames me for stalling.
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