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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 12-28-2005, 11:53 AM
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Default Primary Caregiver -- ramifications?

My spouse is pushing to be named the primary caregiver of the children. Where the children would reside at her residence for a good portion of the time.

We have agreed to shared custody of 50/50. I was told to also ask for shared parenting so as to not give up my rights to be able to make future decisions when it comes to the children - IE is she decides to move out of province and all.

I don't think my spouse is very well informed --- on the legal aspects yet.

She has made it clear that Jan 2006 she would pick up things - seperation and all.

My question is this, what does being a primary caregiver really imply ... what impact does it have on child/spousal costs and/or any other issues?

The way I see it ... I have spent time with the kids, cooked, cleaned, bathed, done homework, have attended many outings with them, etc ... I would consider my 'participation in their lives' to also mean I too am a 'primary caregiver'?

Can the courts rule there can only be ONE primary caregiver and the second spose is considered secondary OR can both spouses be looked up as being primary caregivers? When is one considered a primary caregiver -- during the times they have physical custody or until the the age when the obligations to the children are met?

I'm trying to ascertain the meaning of 'primary caregiver' to determine if this is worth contesting or to let it slide as to avoid ... confrontation and move on.

Hubby
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Old 12-29-2005, 01:26 PM
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Primary caregiver means that the parent that has this can make any and all decisions for the child/ren. They do need to talk to the other about it but the final decision will be that of who has primary care. The courts can and do shared so that all decisions can be done together and both parents have a say. Although this is one of those things that bring many parents back into court for frivalous things. I have primary care and control, and I would not give it up. But at the same time, I have it because I am the only one that has ever made the right decisions where the kids are involved.
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Old 12-29-2005, 04:20 PM
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Default Let me get this straight Lisa ...

So Primary Caregiver mean that any/all decsions regarding the children belong to the spouse designated as the primary?

So if the spouse wants to move out of province, enroll them in some activity or do just about anything regarding the children ... the other spouse would have no say?

Now this is silly. I can understand my spouse wanting to divorce me, but there is NO way that I will give up my RIGHT as a parent to my children in regards to their well being and welfare ... especially the decision making process.

Thanks ... this one is worth contesting.

Hubby
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Old 12-29-2005, 05:30 PM
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Hubby,

Are you confusing Primary Caregiver with Sole Custody. If you are going to have the children 50% of the time, I would say that you have Joint Custody, 50% access.

You can incorporate all the details in a Separation Agreement to clearly define decision making and including mobility rights.
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Old 12-29-2005, 11:27 PM
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Default 50/50

What is the likelyhood of having court ordered 50/50 access?
I need to spend more time with my boys but she is hell bent on only every other weekend and one night a week. Is it easy to get better then this?
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Old 12-30-2005, 01:16 AM
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I am a big fan of shared parenting.

Incidents of custody and access are determined using the best interest test.

Both parents are equally entitled to custody. as per the Children's Law Reform Act - Ontario

I am not sure if you started your court proceeding, but why not ask for sole custody of the children and subsequently failing that a shared custody regime of the children.

You will not receive unless you request it upfront in your application or answer. Act quickly, time is of the essence because literally you have given acquired consent by allowing the situation to go on. A hand shake or verbal agreement means nothing and now you have a defacto situation on your hands.

As I mentioned before what is being offered is a bare minimum. I suspect your x does not want you to spend more than 40% of the time with the children due to the different rules apply when it comes to child support.

SHARED CUSTODY is when the children spend equal amounts of time with each parent. week on week off, split week etc and all holidays are shared equally.
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Old 12-30-2005, 09:13 AM
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Default Proceeding have not begun yet ...

Logicalvelocity,

Spouse has not begun proceedings ... she had mentioned every second weekend and possibly one day during the weekday. Obviously, she has talked to a lawyer or friend to inform herself to some degree.

I am asking for 50/50 physical custody and equal parenting. In other words, my responsibilities as a parent will not change to my children (status quo), only my relationship to my spouse.

So with no proceeding in the works, anything discussed would not be considered 'acquired consent' would it?

Hubby
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Old 12-30-2005, 06:19 PM
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Hubby,

If you fail to act and do nothing and accept the situation; The Court's would see this as acquired consent of the situation.

Court's generally will not disturb the status quo especially if everything is going good for the children.

Right now, you have no agreements in place or court orders and with that said you can also legally keep the children with you and your ex could exercise access.

I suggested that you ask for sole custody subsequent failing that shared joint custody regime of the children mainly due to if the matter does go to court, I bet your ex will ask for sole custody. To keep the legal playing field level is the reason I suggest this. The goal of this is that your ex may agree to equal sharing of time 50-50 with shared custody if she realizes that she may be the one to exercise an alternate weekend regime at the end of the day. It is apparent that your ex does not want to go through a court battle.
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Old 12-30-2005, 06:35 PM
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Just a comment on the primary caregiver label.

I have read some jurisprudence on this label. Some courts have stayed away from labeling one parent custodian and the other parent as an access parent.
They label the residence of the children to be primarily with one parent. Its a nice way of saying sole custody.

To me custody/access language only promotes one parent as a winner the other parent to be the loser to the eyes of the child.

It is generally considered that the primary residence of the children to be the primary custodian of the the children regardless of what labels are being used and that the children PRIMARILY spend the bulk of their time with this parent.
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Old 01-04-2006, 03:50 PM
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Quote:
Originally Posted by logicalvelocity
Just a comment on the primary caregiver label.

I have read some jurisprudence on this label. Some courts have stayed away from labeling one parent custodian and the other parent as an access parent.
They label the residence of the children to be primarily with one parent. Its a nice way of saying sole custody.

To me custody/access language only promotes one parent as a winner the other parent to be the loser to the eyes of the child.

It is generally considered that the primary residence of the children to be the primary custodian of the the children regardless of what labels are being used and that the children PRIMARILY spend the bulk of their time with this parent.

Logicalvelocity,

Am I to understand this right, the courts favor status quo, with my wife wanting the the current dwelling where we live with the kids, they would award her sole custody based on this?

I'm having a difficult time understanding why I would want to START the seperation proceeding by asking for the current dwelling and sole custody?

Someone help me out here ...

Hubby
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