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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  
Old 01-13-2017, 12:52 PM
Berner_Faith Berner_Faith is offline
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Default Foot in Two Families

Hi Everyone,

I would like some advice on the situation my husband is facing with his son. He and his ex-wife separated over 7 years ago, they have had a SA in place since 2012. The children were 5 (son) and 2 (daughter) at the time of their separation. An agreement was made for joint custody and Mom as primary residency (I don’t wish to get into the details on this because it doesn’t change the fact that has been the agreement for the past 7 years).
For the past two years, his son has expressed interest of moving in with his father and I. While we would have loved to have his son with us, my husband knew that at that time the fight would have been very difficult due to the status quo and age of his son. Over the years the comments from his son have not stopped. He has said things like “Mom won’t let me move in”, “Mom doesn’t listen to me”, “I’m not allowed to spend extra time”, “I wish I could move in”, “Why can’t I live with you now?”, “Mom said when I am 12 I can decide where I want to live”… each times these have been met with the generic “Your mom and I made an agreement and that’s what we go by”

However the past few months his son has started coming to us with reasons why he wants to move in…
  • He wants to have his own bed to sleep in… his mom works nights so they spend the nights at their Nana’s, on weekends he is either with us, or sleeps at his Mom’s Bf’s… this is what he doesn’t like because he sleeps on the floor there, not a bed
  • He is switching schools at the end of the year anyways. His current school only goes up to grade 6 and then he has to go to a new school, so he can make his new school the one in our area
  • He is able to join in extra-curricular activities with us (due to his Mom’s work schedule he is unable to do so in her area)
  • He wants to be with his Dad… I think this one just has to be with being a young boy… he wants his Dad and he has a lot to learn from his Dad we believe
  • His Mom has apparently told him that when he is 12 he gets to decide.

This is just coming from him and his sister, Dad hasn’t spoken to Mom about this just changes the subject

It seems every weekend his son bring this up in one form or another. Dad does want to approach this with Mom but knows he doesn’t have a huge leg to stand on because there hasn’t been a major change in circumstances. I know many on here are currently fighting for more parenting time, but has anyone been through this scenario where time has passed and the child still has that need to move with the other parent? Dad doesn’t know how Mom will react until he talks to her, but he wants to be prepared.

We have read some cases on Canlii where the passage of time & age of the child are the first steps in a material change of circumstances. A couple examples,


Yates v. Boswell, 2010 NSSC 11 (CanLII)


Quote:
“[5] I’m satisfied that there have been changes in circumstances and, as it is in the case of parenting, custody and access arrangements, one of the changes in circumstances that often gives rise to the court re-examining custodial arrangements is the mere passage of time. Even though the passage of time is something that is foreseeable when the parties enter into an agreement or the court makes an order with respect to parenting, the needs and circumstances of children change as children grow and develop and therefore because the legislation that the court operates under has as its halmark the fact that the best interests of the child is the overall governing consideration. The court has to look at changes in circumstances in light of that as well, and it is normal for a child to go through changes in his or her life and therefore her needs and her interests change as the child goes through life. So the court can put into place some kind of a parenting arrangement that is perfectly acceptable for a particular point in a child’s life and even though it’s foreseeable that time is going to pass and circumstances may change, that does not mean that the court cannot then re-visit the parenting arrangements to ensure that they continue to be in the best interests of the child, and if they are not to vary those provisions so that they are...”
Edwards v Basaraba, 2015 ABQB 594 (CanLII)

Quote:
1) Has there been a material change in the circumstances affecting the child?

[93] The parent applying for a change in the custody access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. The Father concedes that there has been a material change.

[94] I am satisfied that the threshold requirement is met as this is a situation where the passage of time constitutes a material change of circumstances (see Bergen v.Bergen,2008 ABQB 237 (CanLII) at paras:41-47).
Also, thanks for Tayken for always pointing out Gary Direnfeld's articles on parenting, we have spent time reading many of them. Some that pertain to our situation are;

Foot in Two Families

Who Chooses?


Issues on Both Sides of the Fence



The other factor is my step-daughter. She is a total Momma's girls, which is great and will always be with her Mom. Dad has come to terms with that. I also know courts don't like to split up siblings, but are their cases where siblings are split up because the older sibling has a strong desire to be with the other parent?

I guess the question is what is the best way to approach this? Should Dad wait until the end of the school year? If this is truly what their son wants, he doesn't want to blind side Mom and wants them all to be able to discuss this.
Would the automatic change of schools be another change in circumstances? Does Dad have any chance of granting his son's wishes is Mom disagrees? We don't think it would go to court, they would have to go through their dispute resolution as their SA states, but Dad wants to be prepared.

Please, we are not interested in creating drama, we are really just interested in how this may turn out and what information Dad can provide Mom to show her that listening to what their children want is important.

Thanks in advance!
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Old 01-13-2017, 01:31 PM
rockscan rockscan is offline
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How reasonable is the ex and has she made any comments to dad this "when hes 12" stuff? Has kid also talked to mom? Perhaps a sit down between the three of them?
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Old 01-13-2017, 02:20 PM
Berner_Faith Berner_Faith is offline
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Quote:
Originally Posted by rockscan View Post
How reasonable is the ex and has she made any comments to dad this "when hes 12" stuff? Has kid also talked to mom? Perhaps a sit down between the three of them?


Dad doesn't get into that discussion with his son. If his son says that he says "okay, let's go play a game, hit a ball, etc..." he changes the subject. He allows his son to express his views but he doesn't get into open discussions about it.

I can say that mom is very cautious with allowing extra time. One example was in the summer S11 played baseball in our area. So the weeks he was with his mom we would drive down to pick him up, bring him to his games and turn around and drive him home... which was an 1.5 hour drive each way. One night the game went into extra, extra innings... ended up going an hour longer and then there were awards afterwards. S11 asked if he could stay the night and us drive him back in the morning. So DH called his ex and she had a melt down, claiming she was having a panic attack and NEEDED to talk to her son because she NEEDED to hear his voice and was just going insane. All because S11 wanted to stay the night rather than drive home super late... which he got back at after 11:30pm.

I really don't know... I have never gone through a separation or divorce so I don't know how these situations are usually handled. But I do know this boy wants to be with us. When we had him over Xmas break I had to work... he text me mid day and said "I love being here"... Sunday he had a hard time going back to his moms.


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Old 01-13-2017, 02:33 PM
rockscan rockscan is offline
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Well, the discussion needs to be held sooner rather than later. Kids grow up and have changing needs. Your hubs should have the discussion with your ex and include the boy. If you are leaning towards doing it and it may require a judge to decide, you cant put it off. He needs to stop avoiding and just do it. Mom is only going to get worse about it and its an excellent time with the new school. I think if hes serious about it then they need to pull the trigger. This boys emotional well being will start to suffer.

And for gods sake she cant make him sleep on the floor on a regular basis! Thats awful!
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Old 01-13-2017, 02:37 PM
Berner_Faith Berner_Faith is offline
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Thanks Rockscan... I agree the discussion needs to happen soon. I just didn't know how far he would get because the change hasn't happened yet.

Dads going to talk to son again this weekend and see if he truly wants this 100% and then hopefully have a conversation with mom. He just doesn't want to make the next 6 months hard for his son if mom takes it badly


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Old 01-13-2017, 07:21 PM
rockscan rockscan is offline
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From what you have said, mom will take it badly and make it about her. I try to approach things as preparing for the worst that can happen. His son has been expressing this for a while. Its something he wants and since mom has said kid can choose then she needs to stick to that even if it means kid doesnt want her. They both have to think of the childs best interests and his emotional well being. This isnt a case of mom took away his video game so he wants to live with dad. It sounds like it has been a feeling for a while. Dad owes it to kid to at least open the discussion especially if it is an ideal time for transition. They can work things out in the next few months and have him registered for school in Spetember. And the reason why kid is involved is because his wishes are what has led to this. He is old enough to speak his mind.
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Old 01-13-2017, 07:31 PM
stripes stripes is offline
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Could you suggest a transitional phase - it sounds like Dad sees Kid on the weekend so maybe adding in one weeknight as well, because Kid has expressed the desire to see more of Dad (esp. as Kid is getting older, wants to get to know his father better, etc)? Then revisit in six months or so to see if Kid still wants to switch residences altogether.

(I would also be wary of the grass-is-greener syndrome - Kid wants to live full-time with Dad because he thinks it would be more fun/relaxed/comfortable than Mom, but full-time Dad might not be as much fun as Kid thinks it will be [which is fine - parenting is not about making sure kids have fun], esp. if Kid has mainly seen Dad on weekends. Adding an extra day per week might give Kid a more realistic idea of what living with Dad all the time would be like. Maybe 50/50 would be more appropriate).
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Old 01-13-2017, 10:19 PM
Berner_Faith Berner_Faith is offline
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Quote:
Originally Posted by stripes View Post
Could you suggest a transitional phase - it sounds like Dad sees Kid on the weekend so maybe adding in one weeknight as well, because Kid has expressed the desire to see more of Dad (esp. as Kid is getting older, wants to get to know his father better, etc)? Then revisit in six months or so to see if Kid still wants to switch residences altogether.



(I would also be wary of the grass-is-greener syndrome - Kid wants to live full-time with Dad because he thinks it would be more fun/relaxed/comfortable than Mom, but full-time Dad might not be as much fun as Kid thinks it will be [which is fine - parenting is not about making sure kids have fun], esp. if Kid has mainly seen Dad on weekends. Adding an extra day per week might give Kid a more realistic idea of what living with Dad all the time would be like. Maybe 50/50 would be more appropriate).


I wish we could, however we live 1.5 hours away so 50-50 is not an option... however we do 50-50 in the summer but even on moms weeks he wants to come back. I don't think it is totally anything Mom has done, it's just he's getting to an age where he wants his Dad. I also feel just because of our jobs/schedules we offer more stability which is something he desires.


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Old 01-13-2017, 10:21 PM
Berner_Faith Berner_Faith is offline
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Quote:
Originally Posted by rockscan View Post
From what you have said, mom will take it badly and make it about her. I try to approach things as preparing for the worst that can happen. His son has been expressing this for a while. Its something he wants and since mom has said kid can choose then she needs to stick to that even if it means kid doesnt want her. They both have to think of the childs best interests and his emotional well being. This isnt a case of mom took away his video game so he wants to live with dad. It sounds like it has been a feeling for a while. Dad owes it to kid to at least open the discussion especially if it is an ideal time for transition. They can work things out in the next few months and have him registered for school in Spetember. And the reason why kid is involved is because his wishes are what has led to this. He is old enough to speak his mind.


I agree it is a discussion that needs to be had. He is going to talk to S11 again this weekend and find out exactly what he wants and hopefully come up with a plan where S11 also has a conversation with his Mom. S11 has been told since he started wanting this that Dad would talk to mom when the time came but that he would also have to talk to his Mom about what he wants/needs.


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Old 01-13-2017, 10:32 PM
Pursuinghappiness Pursuinghappiness is offline
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Originally Posted by Berner_Faith View Post
I agree it is a discussion that needs to be had. He is going to talk to S11 again this weekend and find out exactly what he wants and hopefully come up with a plan where S11 also has a conversation with his Mom. S11 has been told since he started wanting this that Dad would talk to mom when the time came but that he would also have to talk to his Mom about what he wants/needs.


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What is the worst she could do if she takes it badly?
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