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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 04-18-2009, 03:28 PM
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Default Joint Custody Vs. Sole Custody

While I am retaining a lawyer in the near future I am looking for some advice from mothers and fathers who are in similar situations.

My daughter is 6 months old and lives with the mother whom I have not had a relationship since just after the mother learned she was pregnant. Not becuase of the pregnancy, becuase of the mother.

So far we have been amicable in all our dealings and no courts or lawyers have been involved. This week she informed me that she will be filing for sole custody. I think we should have joint custody.

Pertinent information.

-She is is the primary caregiver.
-I have been very present through the preganancy and afterwads.
-I have financially meet my obligations from the beginning and will in the future without question.
-She had no career going into the pregancy and no future prospects (PT waitress)
-I have a good career and (I hope) strong future prospects in my industry.
-Her family and support system is loving and helping, but unstable.
-My family and support system are also loving, but much more stable and financially supportive (think university).
-The mother isn't trying to restrict access, she just wants sole custody.
-Most importantly I want to be involved in my daughters life as much as possible.

Is there any reason why I shouldn't fight for joint custody? Why would it be in my daughters best interests for me not to have a say in important decisions in her life?

Is joint custody the best option?

Thank you for any advice or shared experiences.
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Old 04-18-2009, 04:08 PM
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If it was me I would Request Sole Custody and in the alternative Joint Custody. Remember the golden rule in Ontario with respect to Joint Custody.

At adjudication - Evidence of historic communication and co-operation with respect to the child's best interests has to be prevailing before Joint Custody would be awarded.

See Kaplanis and Ladisa. Both appeals were heard the same day and same standard applied with opposite results.

CanLII - 2005 CanLII 1625 (ON C.A.)


CanLII - 2005 CanLII 1627 (ON C.A.)


Another good SCJ read recently released with respect to your situation.

Warcop v. Warcop - Pay particular attention to the social science literature mentioned and the age of the child and tender years:

CanLII - 2009 CanLII 6423 (ON S.C.)




lv


BTW, welcome to the forum!

Last edited by logicalvelocity; 04-18-2009 at 04:13 PM.
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Old 04-18-2009, 05:08 PM
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Quote:
Originally Posted by Fluffy View Post
...Is there any reason why I shouldn't fight for joint custody? ...
no

Quote:
Originally Posted by Fluffy View Post
...Why would it be in my daughters best interests for me not to have a say in important decisions in her life?...
It wouldn't. You are her father and everyone needs their parents as much as possible.

Quote:
Originally Posted by Fluffy View Post
...Is joint custody the best option? ...
Yes. Both parents involved as much as possible. You are her father - what more reason do you need to be responsible for half of her up bringing? Don't walk away from your child, she is equally yours, live up to your respsonsibilities, and the joy of raising you own child. Consider 50/50 joint physical custody, but don't allow sole custody because you will be letting someone else raise your daughter without your input.

Get involved in her life now and don't hesitate to explore joint physical custody.

Don't rely on the mothers word for access, get it in a written, legally binding agreement and do it now.

She is EQUALLY your daughter, remember that.
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Old 04-18-2009, 05:36 PM
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What is 50/50 joint physical custody?

I am never walking away, but I want to make sure that I am pursuing route that is in my daughters best interest, not protecting my ego.

For the good and bad of it I am a extremely calm and rational person. For this reason I do feel that the mother is the best primary care giver becuase she has very little potential earning power. In order to provide a financially stable life for her I need to work and work hard. While I would gladly be the primary care give I would be unable to progress my career in a manner necessary to provide options to my daughter. To me this is not in the best interest of my daughter.

Logicalvelocity: I have told the mother that I would gladly be the primary caregiver, but for the reason mentioned above I dont think that it is in my daughters best interest.

Also, I am working through the cases you posted and thank you very much, so far they have been very enlightening.

One concern I do have is that joint custody seems to demand cooperation between parents. In the 12 months since we found out about the pregnancy I have never even come close to raising my voice. It is not my nature and all communications have been civil. The mother says we disagree on everything but the only thing that has become an issue is the sole/joint custody situation. Can the mother say it won't work just becuase she can't communicate calmly? And yes I did read the reference to that in the first case.

Hey, I am an atheist and I even agreed not to contest the mother baptising my daughter.
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Old 04-18-2009, 08:12 PM
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Quote:
Originally Posted by Fluffy View Post
What is 50/50 joint physical custody?
I meant that your daughter live with you half the time.

I would rather be poor than not live with my kids (half the time) and I hope they feel the same way. Just my view. Each to their own.
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Old 04-19-2009, 02:52 PM
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Quote:
Originally Posted by Fluffy View Post
What is 50/50 joint physical custody?

I am never walking away, but I want to make sure that I am pursuing route that is in my daughters best interest, not protecting my ego.

For the good and bad of it I am a extremely calm and rational person. For this reason I do feel that the mother is the best primary care giver becuase she has very little potential earning power. In order to provide a financially stable life for her I need to work and work hard. While I would gladly be the primary care give I would be unable to progress my career in a manner necessary to provide options to my daughter. To me this is not in the best interest of my daughter.

Logicalvelocity: I have told the mother that I would gladly be the primary caregiver, but for the reason mentioned above I dont think that it is in my daughters best interest.

Also, I am working through the cases you posted and thank you very much, so far they have been very enlightening.

One concern I do have is that joint custody seems to demand cooperation between parents. In the 12 months since we found out about the pregnancy I have never even come close to raising my voice. It is not my nature and all communications have been civil. The mother says we disagree on everything but the only thing that has become an issue is the sole/joint custody situation. Can the mother say it won't work just becuase she can't communicate calmly? And yes I did read the reference to that in the first case.

Hey, I am an atheist and I even agreed not to contest the mother baptising my daughter.
In a nutshell -- Joint Custody in Ontario is basically comes down to "historic" communication and co-operation with respect to the child's ever changing best interest. However, the courts also award joint custody in situations to protect a child's relationship with their other parent. See Trepanier

CanLII - 2008 CanLII 3971 (ON S.C.)


I see your view with respect to your child's best interest. Nevertheless, you could still have joint custody regime prevail with your child's primary residence with the other parent.



lv
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Old 04-21-2009, 10:13 AM
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I was just granted sole custody, and I can assure you that the fact that you make more money than your ex wife will not sway the judge to give you sole custody. I was told by a judge that there are many mothers out there on welfare who are rich in parenting skills. So be it. Also, it doesn't matter whose family members are more "stable." Unless one parent agrees to give the other sole custody, it is most often only awarded because of special circumstances, as in one parent being violent or struggling with substance abuse. Your best bet is to seek joint custody.
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Old 04-10-2013, 01:28 AM
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I agree completely with the advice of the other posters Fluffy and you seem to be asking the right questions. The only additional advice I would mentioned is not leave custody matter discretionary at all. It may seem that you and the mother get along fine currently; however, in my case that changes drastically. I have run into others, in similar situations, in which the relationship changes drastically with medications.

I ran across two books when I first divorced that helped me become educated and went a long way. The first is Simply Smart Divorce ... i think a website of the same name simplysmartdivorce.com and the second was Surviving Your Divorce by Michael Cochrane.
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Old 04-12-2013, 03:08 PM
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I am sure when you retain a lawyer he/she would never say to allow the mother to have sole custody.

Don't allow a lawyer to make any decisions for you and don't believe anything they say. Just fight for your beliefs.

You go hard or go home. This is not about just now, this is about the future too. Don't settle for anything less then joint shared custudy. You will regret it. You sound like a stable human being. Now, don't just be the man you can be, be the father you can be!

I had a lawyer that flat out told me "your chances aren't good for joint shared custody". I promptly left and found another lawyer who would fight for what's right, not for what one believes.

Your child is better off with 2 loving, caring, active and dedicated parents of equal magnitude. Maximize each others role as parents from the start!

Sole = no.
Joint is typically easy to acheive.
Joint shared is what you want and your daughter will benefit from it from the start.
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Old 04-12-2013, 03:24 PM
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Speaking specifically from a mom's perspective, does she realize what sole custody means? So many people still think it means where the child actually lives. When I first separated, everyone would say "I hope you are going for sole custody" when in fact, it wasn't what I wanted at all.

Talk with the mom if you can about what sole and joint would look like to you. You may find you are similar pages. What you also want to talk to her about is if you can work out an access schedule that works for both of you. The baby is very small but that doesn't mean you are incapable. The mom may be very comforted by knowing you will help support her and believe in her ability to care for the child.

A graduated access plan may be in your best interest, especially if you work. Do you want your child to live with you 50% of the time? What do you want now? When the child is a year? 5 years? Etc.

Hope it works out okay for you.
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