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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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  #1 (permalink)  
Old 01-28-2017, 04:16 PM
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Default How to start? Asking for a friend

Hi everyone,

Long story short, asking for a friend:

Dad and Mom have one eight year old son. Separated five years. No progress towards divorce because of differences over disposition of house. 50/50 (informal) with Kid. No formal agreement in place about custody. Both Mom and Dad are decent parents, but situation is now getting tense because Mom keeps finding reasons to deny access to Dad (keeping Kid at her place). Dad can't afford lawyer, wants to try obtaining an interim order for joint custody and shared parenting as self-rep, even though other divorce issue are dragging on.

Where does he start? Dad is in Alberta. How does Dad initiate a request for an interim order, and what documentation does he need?
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Old 01-28-2017, 04:28 PM
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What is the rush?

For a father, building up an informal 50/50 status quo is a good thing.
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Old 01-28-2017, 05:05 PM
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Not really a rush - this has been going on for years. But Mom is becoming more and more difficult and refusing to let Kid go to Dad's without reason so Dad wants some kind of paper establishing 50/50 rather than just going on informally (like I said, both decent parents, no reason not to have 50/50).
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Old 01-28-2017, 07:06 PM
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So if there is already an established (over 5 years of status quo) of 50/50 custody then I assume Father is seeking to establish a formalized agreement on parenting time/access correct? In other words, he wants a court-approved schedule?

Sometimes a person may seek legal seal-of-approval for something (in this case formalizing a 50/50 custody) but end up getting the 50/50 with a shitty parenting time/access schedule.

Sometimes it might be good to let 'sleeping dogs lie' and hone up on one's communication skills with the other parent? Jumping into a court scenario after 5 years of what sounds like relative post-separation parental cooperation might not be a wise decision. The cost/benefits of proceeding should be weighed. Yes court gives people the piece of paper but if the process poisons future parental communication I would think it be prudent to reconsider.
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Old 01-28-2017, 11:43 PM
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Quote:
Originally Posted by arabian View Post
So if there is already an established (over 5 years of status quo) of 50/50 custody then I assume Father is seeking to establish a formalized agreement on parenting time/access correct? In other words, he wants a court-approved schedule?

Sometimes a person may seek legal seal-of-approval for something (in this case formalizing a 50/50 custody) but end up getting the 50/50 with a shitty parenting time/access schedule.

Sometimes it might be good to let 'sleeping dogs lie' and hone up on one's communication skills with the other parent? Jumping into a court scenario after 5 years of what sounds like relative post-separation parental cooperation might not be a wise decision. The cost/benefits of proceeding should be weighed. Yes court gives people the piece of paper but if the process poisons future parental communication I would think it be prudent to reconsider.
The communications are pretty poisoned already, from what I hear.

I'm not really asking whether Dad is doing the right thing by seeking an interim order - that's up to him to determine - what I'm asking is what the first step would be. I know some of the legal principles involved, but because I've been fortunate enough to resolve issues out of court, I don't know how one initiates a request for an interim order. Dad can always go ask at the courthouse, I imagine.
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Old 01-29-2017, 12:48 AM
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The problem here is that mom is restricting access, so if Dad doesn't take steps to formalize the status quo, he could lose the 50%.

I would guess that the father could start an application for custody and to enforce a schedule, and to incidentally resolve all other divorce related issues. Then, when mom denies parenting time, he could motion for interim 50% parenting time as per the status quo established over the last 5 years.

Maybe Dad could hire an unbundled lawyer to help file the appropriate paperwork?
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Old 01-29-2017, 01:28 AM
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if mom is screwing around with this access time, he should be documenting as much of this as possible. If he can capture communications in writing of this happening that would be ideal. Any indication from mom (in writing) that she is screwing around his access time would be his golden ticket.

he needs to line up his ducks (today), get all the necessary forms, and start filling them out to the best of his ability and having them reviewed by a lawyer.

next step would be for him to write the magical letter to mom, to which the mother either responds nicely or finds her response referenced in the court papers that get served to her the following week.
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Old 01-29-2017, 01:50 AM
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Sounds like they need a formalized separation agreement for a start. Do they have this?

Exchange of parenting plans?

If they want to keep lawyers out of the mix they could start with this. Sometimes simple communication breakdown is the problem (notably brought on when one or the other enters into a new relationship).

With this in mind I'd start simple and keep discussion of necessity of lawyers at this point out of things. To do this they might agree on a self-imposed timetable in which they come to agreement of draft separation agreement. Say March or May 31st? Agree on manner in which to exchange parenting plans. Agree on methods of discussion. Often people end up in lawyer's offices simply because they become frustrated with their perceived view that the other party is ignoring things/nothing is happening.
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Old 01-29-2017, 11:47 AM
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They're in the midst of negotiations over a separation agreement, which have been going on for ages. The sticking points include division of consumer debt (which they have lots of), in loco parentis status of Mom's older child (not with Dad) and the disposition of their house, which they borrowed against and is now under water (balance on the mortgage is more than the house is worth). Custody of their joint child is only one of the issues but it's the one that most needs resolution because as Janus indicated, Dad is concerned that if Mom keeps withholding Kid, a status quo will build up which will enable Mom to get sole custody. So:

1. Dad is broke (must self-rep as much as possible)
2. There is no separation agreement - they've been doing week on/off on an informal basis for a couple of years.
3. Recently, Mom has been saying that Kid doesn't want to see Dad and that she's going to keep Kid.
4. Dad is worried about this becoming a pattern.
5. Dad wants an interim order for joint custody and shared parenting.
6. Dad asked Stripes for help.
7. Stripes doesn't know how to start the process - what form does one need (statement of claim? Form XYZ123?), what documents need to be gathered, what are the nitty-gritty details of getting in front of a judge.
8. Stripe asks the hive-mind for nitty-gritty help.
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Old 01-30-2017, 01:11 AM
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Separate the issues.

File for joint custody for the mutual child with 50/50 shared parenting plan as close to what's been going on over the past few years.

Ignore all the other issues for now.

Tell your friend to also get a handle on his budget. Maybe rent out some rooms to university student to help cover some costs. Maybe ask the bank for some help.

He does not seem to be living within his means.

He can then search this forum for the process to file a motion for custody.

Oh and most important. Document, document and document.
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