Affidavit question

[Amanda2]

The judge is hearing my motion to change next wednesday. I have filed all of my documents and they have been served.

The motion is for primary residence. Our daughter spends 10 out of 14 days with me. We have joint custody but on top of that I look after her while my EX is working. She spends most of her time with me.

Getting to the point.

I just received his Motion to Change and Sworn Affidavit as well as Affidavits from 6 other people ( his family and future father-in-law).
All basically saying yes they are amazed at what a wonderful father he is. His fiancee actually states in hers that " he is the best father she has ever met". ( I hope she thinks that since she is having his child.)

My lawyer thinks that all these affidavits are not really necessary. He thinks I don't need to get my friends and family to do them because of course they are going to say nice things about me.

Please keep in mind I have never said anything against my EX that he would have to defend. Just that he has moved to what has been measured at 70 km away and now that she is starting school our current arrangement will be too hard on her and since she allready spends most of her time with me and her older brother she should be living with me.

Does anyone think I need my own affidavits - do the Jugdes put alot of weight on them?
Or is my lawyer right?

A.

[logicalvelocity]

Change is uninviting at times. The new regime is too hard on who? 70 km of travelling may not be quality parenting time for your child but the distance is trivial.

Which parent or parent's is providing the transportation for the new regime so that your child can continue to come to know both their parents.

[Beaudoin]

I have the exact same question as this woman, and it doesn't seem that LV really addressed it. Does anyone know if Affidavits really matter? What if they are coming from people who are not your relatives?

[SillyMe]

Moreover, I think your ex may be demonstrating there is a larger community for the child that also have a vested interest in the current custody and access situation…being that as it may.

[KeepSmiling]

What is the current primary residence? What do you want to change and why? Is it for school registration? Is it to change access arrangements? What is your Ex asking for in his motion?

And "the judge is hearing my motion" - Is this a Case Conference?

[logicalvelocity]

I have the exact same question as this woman, and it doesn't seem that LV really addressed it. Does anyone know if Affidavits really matter? What if they are coming from people who are not your relatives?

LOL, of course Affidavits matter - hence my initial response. Affidavits are sworn evidence, although untested, but would hold some weight for interim disposition and/or Summary Judgement.

[InterprovincialParents]

Affidavits DO matter, as LV has in fact answered twice...If they are coming from people other than relatives is irrelevant to some degree...the court will look at the person's role in the child's life and weigh the depth and sincerity of an affidavit. Anyone who signs an affidavit may be compelled to testify in any hearings, so often others are hesitant to provide them (like teachers, doctors, etc). Depending on each individual's sincerity, the judge will weigh any Affidavit on a balance of probability.

[InterprovincialParents]

The best affidavits in a family dispute or breakdown are often those with no allegiance to either side, such as day/childcare providers, your children's classmates' parents, etc...those with no tie to one side or the other, the unbiased.

[rwm1273]

Many judges don't place much weight on an affidavit from family or friends. I would not ask anyone to file an affidavit unless they had something specific to counter.

All the statements in his extra affidavits are just fluff. Don't waste time discussing that with your lawyer, as it will only cost you money.

[InterprovincialParents]

Many judges don't place much weight on an affidavit from family or friends. I would not ask anyone to file an affidavit unless they had something specific to counter.

All the statements in his extra affidavits are just fluff. Don't waste time discussing that with your lawyer, as it will only cost you money.

I agree, but only if there is fluff in the affidavit. Otherwise, she will need counter-evidence to undermine the credibility. I would need more than the fluff statements from the new gf.

[Pharah]

Affidavits from friends and family hold as much weight as the judge wants to give them, which means there is no way to determine that. The important part is your Daughters routine and family (both sides). Saying he is a great Father doesn't change the fact that she is with you 80% of the time.

When you say that she spends more time with you, is that based on a right-of-first-refusal agreement with your ex or is his new spouse unwilling to care for your Daughter while her Father's away?

Additionally, what does Primary mean to you. It's different in every case. With us, we are asking for Primary as we have been primarily responsible for registration for school, daycare and extra-curricular activities. Both parents still make daily decision regarding his health and well-being while they are with them and we make major decision jointly at present.

With the introduction of shared eligibility, this will not mean much with respect to tax credits and benefits for 2010.

I guess my questions is, what power are you 'taking away' from her father?

[dadtotheend]

If all the affidavits are saying is what a great father he is, that doesn't really address the issue of where the children's primary residence is. If the affidvaits are claiming that primary residence is with Dad then you should rebut that.

[rwm1273]

If all the affidavits are saying is what a great father he is, that doesn't really address the issue of where the children's primary residence is. If the affidvaits are claiming that primary residence is with Dad then you should rebut that.

I agree if the extra affidavits claim he has primary residence, but I would not have my friends and family write affidavits. I would have letters from the school, doctor, daycare, and other independent third parties do that.

Judges place some weight on affidavits, but oral testimony is better. Judges do not like to read long drawn out affidavits. They think they have better things to do. If it is sounding like it is going to be a war of affidavits, then I would suggest getting into special chambers where you can give oral testimony, and have more time to discuss the issues with the judge. Most hearings are just regular chambers, and is open to the public, and you get 15 minutes to argue your case. You get 5 minutes, the other lawyer gets five, and the judge laws down the law in 5. Not much of the meat and potatoes gets heard. And then it is the next case up to the bench.

Special chambers is a much longer hearing. It is often closed to the public, and this is were you can get into the real meat and potatoes of the case. You often are able to spend most of the morning or afternoon trying to explain to the judge what the issues are. Often oral testimony and witnesses are able to appear, and in some ways it is like a mini trial. It is much more expensive, but often much more productive too.

[Mess]

I think dtte got right to the point here. If you are basing your case on distance, then an affidavit saying what a nice person you are is irrelevant.

Evidence has to be relevant or it is worthless, and often not even admissible. Of course a judge won't bother reading 10 affidavits about what a nice father he is, unless the argument you are making is that he is a nasty father.

Don't just staple random affidavits to your papers and expect them to mean anything, but in your aguments, be clear about what you want, why this is the best option, supporting reasons for the why, and then factual examples which support the reasons. Then state that these factual examples are supported by the attached affidavits. The affidavits then don't have to be read, what they are doing is preventing the other side from challenging your stated facts. They need to be there, but the main purpose is to support what you are saying earlier.

[NBDad]

If you are making points in a motion, make sure you are backing those up, as much as possible with either affidavits or exhibit evidence.

ie. %child% spends much of her time with me, as STBX does not have child care readily available in his area. I have attached the email chains showing the requests for me to take %child% due to the lack of available child care as exhibit A.

I think the largest motion I filed was a rebuttal...it was over 60 pages long, including the exhibit evidence. Then again, my ex is batshit crazy and comes up with some pretty off the wall affidavit evidence.

Make sure that anything you are arguing:

1. Is the truth
2. You can back up with evidence/testimony

Schools, doctors, dentists, etc will typically NOT agree to give affidavits...they don't want to get involved. Should you get to trial, you CAN subpoena their testimony if you have too.

To get around this kind of thing, you can use other forms of evidence to help support your arguments. ie. School registration forms, report cards.

As an example, I was arguing that I was the primary caregiver and had been all along, I was also arguing that the kids educational needs were being affected by her not making sure they were in school. I pulled out the attendance reports pre-separation showing 0 days missed, the ones from when SHE had residential care/control (20+ days missed), and then the ones from when she surrendered custody to me (back to 0 days missed).

This is also why I tell people on the forum to do ALL your communication via email. It gets date/time stamped and can be used as exhibit evidence .

ie. if the kid had a doctor's appointment- you should inform the ex of it via email beforehand, and if the ex doesn't show up at the appointment, you should then email them after the appointment to advise as to what all went on during the appointment.

This circumvents the need to get the doctor to file an affidavit that you are the one that deals with the child's medical needs...because you have email evidence that shows that the ex isn't bothering to be involved.

Do the same thing with dentist appointments and school issues as well. (Send the teacher/principal a followup email, outlining what was discussed and thanking them for their time)