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  • To fight or not to fight?

    Okay so the ex has served me papers and my lawyer is responding. She is asking for sole custody and I am asking for joint. My lawyer has basically indicated that status quo means it's pretty much impossible for me to get sole custody, as they live with her. She has also stated that I'm very unlikely to be given joint custody, given that the ex and I don't see eye to eye on some issues and she seems increasingly less willing to work with me in a constructive, adult fashion.

    The problem this leaves me with is that - assuming we can't get the ex to concede joint custody in negotiations - I would have to either accept her having sole custody or fight it out in the courts. My gut instinct as a father is to fight to the last breath, especially as my ex has a criminal record and history of emotional and, I would argue, mental instability. I could live with her having custodial as long as I had joint custody, as it would give me a little more power to minimize damage to the kids in the event she took another trip to Crazyville.

    The problem of course is that I'm not rich. A long custody battle could set me back tens of thousands of dollars that I don't have. If I fail, which seems likely, I could be ding'd for her legal costs as well. The ex doesn't work and so any financial stability or opportunity the kids are going to have will be from me. I guess I just don't know if I can afford to risk financial ruin in that kind of situation... but at the same time I fear that conceding her sole custody will come back to bite me in the butt at a later date.

    I guess my questions are as follows:

    1) Are my odds really that bad in court, re: custody?
    2) Will conceding sole custody look bad on me if I'm forced to take her back to court in the future?
    3) Are there any specific amendments or restrictions to custody that I should be asking for if we do concede sole custody?

  • #2
    aboutime,

    as you mentioned:

    I guess my questions are as follows:

    1) Are my odds really that bad in court, re: custody?
    2) Will conceding sole custody look bad on me if I'm forced to take her back to court in the future?
    3) Are there any specific amendments or restrictions to custody that I should be asking for if we do concede sole custody?
    Custody and access decisions are based upon the best interest test as enumerated in the federal and provincial statutes. Until an order from the court or a separation agreement provides otherwise, Both mother and father are equally entitled to the incidents and responsibilities of custody.

    Conceding sole custody will definitely look bad on you as no matter her ability to parent effectively you pretty much are endorsing that she is able to parent the children effectively and its their best interest that same remain in her sole care.

    Status quo is difficult to change, However as I mentioned above, until an order from the court or a separation agreement provides otherwise Both parents are equally entitled to the incidents and responsibilities of custody. The longer a regime goes on without an order somewhat demonstrates that it should be fostered into the future.

    If your have difficulty funding your litigation, you could always self represent yourself as most of the forms are on line and available to the general public.


    lv

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    • #3
      It's kind of a tricky situation that the courts put you in: if you fight for custody it will make things lengthy and expensive but if you concede for those reasons it looks like sole custody for the ex is the outcome you endorse.

      I have a number of serious parenting issues with her but ultimately I've allowed her to be the custodial for this long (1.5 years) without taking court action so it's hard to go before a judge and argue that she is unfit. Granted, I only waited that long because we were attempting mediation and knew my odds of winning custody in court were basically nil - but still.

      Ideally the goal is still to get her to agree to joint custody through negotiation. Barring that, I will probably have to self-represent going forward, but my lawyer has already said that I can see her periodically and she will help advise me on what to do. An hour or two here and there when needed will be much cheaper than retaining a lawyer for the whole thing.

      Once again, thanks for the advice LV. If anyone else has had any similar experiences with this stuff and wants to comment, please do!

      Comment


      • #4
        Joint Custody

        You can win Joint Custody. In your pleading ask for sole custody (you won't get it) and offer an alternative of joint custody with a parenting plan that lays out responsibilities for various departments, such as schooling. Then ask for the appointment of the Office of the Children's Lawyer so that an assessment of the current arrangement can be preformed (if she's a feak they'll see it). Play nice with the ex. When the child is ill phone her. Document your coorporation and hers so that the court can be shown things are working. IF the children's lawyer recommends joint custody, go for it. (note the children's lawyer will take 6-10 months and its free).
        If the children's lawyer does recommend it, you can still get it. Joint custody requires you to agree on all major issues. You can tell her she has sole custody, under the condition that she is required to get your approval on every issue - which is really joint custody without the title. Obvioously, this is not your first choice.
        Representing yourself and paying for consultation as needed is an excellent way to preceed.

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        • #5
          I am very skeptical myself about self representation. If the other party brings a lawyer, then I think you are better off with a lawyer too. Has anyone heard about those lumpsum fee lawyers? My first lawyer actually asked for a fixed sum of money and she said she was gonna cover me all the way through. Lucky for her we signed the consent at first appearance. Still, I think I got worth more than my money had it been another lawyer. Then again she quoted me a fix sum of money for divorce case and I paid her half of the total fee. She did quite a bit of work for me with half of the fee until I replaced her. If you are in Toronto area, I can refer you to her. I replaced her because she was going on mat. leave and I decided against using the agent appointed by her.

          The other option which I recommend is to use some experienced law clerk to do your paper work and then take it from there. Right now, I am doing that. All my paperwork will be done through a certified law clerk and then be given to my lawyer who will represent me in the court.

          Comment


          • #6
            law clerks

            Using a law clerk is a great way to spend your excess cash, if you can't type.

            Comment

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