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  • 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

  • #2
    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.

    Comment


    • #3
      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

      Comment


      • #4
        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.

        Comment


        • #5
          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?

          Comment


          • #6
            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.

            Comment


            • #7
              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

              Comment


              • #8
                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.

                Comment


                • #9
                  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.

                  Comment


                  • #10
                    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

                    Comment


                    • #11
                      Hubby,

                      From what I understand of your situation, you and your spouse are separated but still in the matrimonial home, so status quo for custody has not set in. Hopefully you will have a separation agreement in place before one of you leaves the home defining the custody/access, parallel parenting, prime caregiver, shared custody whatever words you choice.

                      I happened to be talking to my lawyer today and asked her about the wording. She said in most cases she avoids the "custody" & "access" but the parents do have to get along to some degree. Although in high conflict cases she prefers to use the terms "custody" & "access" as these words are well settled in law and understood by the courts and police.

                      Comment


                      • #12
                        Originally posted by hubby
                        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
                        Hubby,

                        Either parent could bring forth a request through the courts for exclusive possession of the matrimonial home, and may be awarded if it was deemed to be in the children's best interest.

                        This is generally an INTERIM measure as eventually the matrimonial home property would have to be divided or sold etc. One spouse would have to buy out the other party etc.

                        Most families cannot afford this scenario as there isn't enough money to go around after paying child support, spousal support if applicable and maintaining a suitable 2nd dwelling etc.

                        I am not clear why your ex spouse is so set in an alternate weekend regime.
                        To be so set, and this is based on speculation only is that it has to do with the 40% of time threshold that comes into play in regards to child support.

                        Have you asked your ex spouse that you would like to be primarily custodian of the children and that she would be more than welcome to exercise an alternate weekend regime? She could also pay you child support for the children.

                        Incidents of custody and access are determined on the best interest test. From what you have stated, it is apparent that she is trying to limit your time under 40%.

                        Per say if she moved out with the children and you accepted the situation, the children lived primarily with her and this situation went on for a few months before you brought an application, the courts would see this as acquired consent because you failed to act delayed in bringing forth an application to alter the current situation.

                        Courts generally do not like to change a status quo living arrangement if its being working out for the children. Reason being is that it is too disruptive emotionally and physically to the children. If this scenario was to occur, and you disapprove of it highly, you have to act fast immediately and bring forth an application through the courts to protect the rights of the children (primarily) and your rights as a parent (secondary). The court process is slow but it clearly shows to the courts that you have not given acquired consent of the situation. This is your only recourse.

                        Comment


                        • #13
                          I thought that getting exclusive possession of the matrimonial home was difficult, unless it is a situation of domestic violence. Aren't Judges reluctant to order a spouse out of their own home? How would the "best interest of the child" relate to one spouse leaving, if both spouses were acting in their children's best interest?

                          Comment


                          • #14
                            Grace,

                            It is very difficult to exclusive possession of the matrimonial home.

                            Generally most families can not afford to maintain the current lifestyle for the children and an alternate residence also. Something has to give.

                            Most times people want a quick resolution to the issue and want the matrimonial property sold to use the money to purchase another residence and get on with there lives.

                            I think from what I have read is yes Judges are reluctant even in the interim measure to order this as eventually the children will most likely have to move at some point.

                            It would have to be all Dependant on the facts

                            Comment


                            • #15
                              How would the "best interest of the child" relate to one spouse leaving, if both spouses were acting in their children's best interest? This is an EXCELLENT question.

                              As far as I'm concerned the 'best interest of the child' is for the parents to remain together and work out their marital issues via coaching or to give ample time for the hurts to heal and reconciliation to take place. For time and hurts to be healed, sometimes it is necessary for one spouse to move out of the residence physically to give the other spouse time to heal.

                              Unfortunately, currently to do this, requires a seperation agreement be put in place, doing so can destroy the TRUST and HOPE that the marriage can be saved as a result of this action.

                              It's a double edge sword ... how can the courts rule in the best interest of the child ... when it is the courts that do not give enough room for the spouses to try and work things out which is the best interest of children?

                              That is my situation. I believe that 'physical seperation' from the dwelling may help my spouse to 'wake up' and give her time to heal and rest. The thought of a seperation agreement and involvement of lawyers indicates to me that the spouse initiating the process has 'given up' and has reached the break point in the relationship. As long as ONE spouse believes the relationship can be saved ... there is hope. Unfortunately, the courts can only go what is written in the law ...

                              So, anyone have some suggestions on how to give 'physical access' to the troubled spouse, yet retain the rights of as a parent without being penalized for an action deemed to potentially save the relationship ... which in reality, is in the best interests of the children?

                              Hubby

                              Comment

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