Mom is threatening to move can I get an emergency hearing?

[Dad111]

Hi everyone. I've posted here before and wanted to get some feedback. I've had a 60/40shared custody for the last 3.5 years with no court order. I wanted to go to the cottage with my girlfriend and son .I informed the mother and she started saying I'm no longer his father and she wants to move Montreal now and I can start "start my own family now." I've always been involved with my son and never missed any time with him or not done anything asked of me.The mother and I have a conflicted history.

We've tried mediation twice with no results and she says she won't go to court shes just leaving.There's 3.5 years of issues and bullshit between us but we've always done our best when it comes to our son.Every time I do something she doesn't like I don't see him for a weekend.Lots more to go on about but this is where we are at currently.

[staysingle]

I don't think you can start any proceedings based on the threat of moving. Do you have a separation agreement with a moving clause?

I think you have to let this play out and if mom appears to be carrying this threat out and you can clearly show this then let the legal howitzer fly.

Stay cool, the advantage belongs to you.

[Gary M]

I don't think you can start any proceedings based on the threat of moving. Do you have a separation agreement with a moving clause?

I think you have to let this play out and if mom appears to be carrying this threat out and you can clearly show this then let the legal howitzer fly.

Stay cool, the advantage belongs to you.

Bad, bad advice.

Do a search for mobility on this forum and you'll find lots of info on how to stop the move. Good luck.

[Dad111]

I don't think you can start any proceedings based on the threat of moving. Do you have a separation agreement with a moving clause?

I think you have to let this play out and if mom appears to be carrying this threat out and you can clearly show this then let the legal howitzer fly.

Stay cool, the advantage belongs to you.

This is the the problem staysingle . There is no agreement of any sort.If she takes off to where ever I have a huge uphill battle in front of me.

[blinkandimgone]

Bad, bad advice.

Do a search for mobility on this forum and you'll find lots of info on how to stop the move. Good luck.

Totally agree, horrible advice!! Don't just sit back and wait for a phone call after she's moved them. You do NOT need a seperation agreement to keep her from moving the children away from you.

Good post um..."Gary".

[Mess]

Dad111, here are some basics.

There is a concept called status quo, which basically means if you have had an informal arrangement with the child for 6 months to a year (you have certainly exceeded that) then this has become the preferred arrangement. The courts would not upset this without a very strong reason, it is pretty much as strong as a court order or signed agreement.

Regarding custody which means decision making and guardianship, you have de facto joint custody. Neither of you can make arbitrary decisions to move the child, to change schools, to make elective medical decisions (you may always take emergency treatment without the other parent's permission).

She may move anywhere she wants; she may not move the child without your agreement, certainly not out of province. You could even challenge a short move out of the current school district, although you need stronger arguments for that. For a long move such as she is contemplating she really has no chance.

That said, you do nothing and she wins. You must take steps to protect yourself. If you do nothing, she moves to Montreal with the child, you wait 6 months for a court date and meanwhile the child is settled into a new school with new friends and activities, what do you think your chances are?

If you seek an emergency motion to keep the child in the current school district you will get it, but MAKE SURE YOU HAVE SOME FACTUAL BASIS.

Avoid phone calls, try to communicate in email. Email is good proof in court, print it out and it shows the date and time and where it came from. Texts are bad that way, phone conversations are useless.

Try to open the conversation in a normal way in email and let her say the same thing, this gives you sufficient proof to attach to an affidavit.

In general, avoid phone contact. Just don't answer. Ignore texts. Email her that your phone service has been spotty, you prefer mail because you will forget was said, that sort of thing. Keep your own temper, keep your mails factual and businesslike.

Perhaps she had a bad day and will never bring it up again. Fine. Write it all down in journal form, dates, times, as much of the conversation as you can. If she says it again or especially if she states it in email, you have something to take to court. If it never comes up again, you did well seeking advice but there is no need to overreact to one comment.

Make sure the child is registered for school in the fall as normal, has daycare, recreational or sports activities lined up, swimming or music lessons, doctor and dentist appointments scheduled. You should be attending as much of these as you can. Keep a journal or calendar of all such things; at some point you may need to factually back up a claim that you were involved in the child's life, you need more than memory to go on. The first thing she will argue if she wants to move is that you did nothing, she did everything. Make sure she can't back that up.

Once you have some kind of confirmation in writing of her intentions, you have to inform her, again in writing (email is excellent) that she does not have your permission. It is at this point that you bring up the concept of status quo and defacto joint custody. If it comes to that, return here for more information.

Don't start the fight now. She sounds like a hot-head. This is actually to your advantage. But if she gets a lot of legalese from you about custody and rights, she start working silently instead of making open threats. Keep a normal dialogue going in email.

For example, simply writing, "I didn't quite understand what you were saying on the phone last time. It didn't make sense. Can you explain?" Something like this is much better to get her writing plainly about her intentions than threatening her outright with an emergency motion in court.

[staysingle]

When I commenced with my emergency motion, my lawyer ( senior partner, 30 + years experience, written books, in the media, teaches law , etc., in other words the kinda lawyer when he opens his pie hole everybody listens)) said " Judges are always upset at emergency motions. The process usurps the ability of the other party to defend their accusations and the moving party can abuse this process. The only time I recommend starting this is when you can SHOW the children are in imminent danger ". He went on to empathize SHOW, PROVE , etc. He also said if you proceed with this " life as you know it is over. THis will kick off a custody battle that will last two or three years and consume all your money. He was spot on!. Also I asked him" off the record" what he would do in my situation. He said " what your doing, you don't have a choice". At the motion the Judge was furious with me, threaten my lawyer with contempt etc. In the end she had no choice but to change custody back over to me.

I bore you with this story to tell you I have direct experience with emergency motions and to share what transpired.

Based on what my lawyer explained ( which made total sense to me in retrospect) you better have a true emergency to trigger this process. If it is not they will hurt you.

The mother is upset about something. You two have been getting along informally for this long don't throw it away ( not just yet anyway) over a court proceeding to which you likely won't prevail in. This motion will likely trigger a full bore custody battle.

If you are prepared for this fine. ( most people have no idea the financial and emotional costs for this, it is devastating and will take all of your time and your girlfriend.... kiss her goodbye.) Organizationally, you will need the Martha Stewart gene to keep up.

Without extensive proof of your current 60/40 arrangement she wins ( do you have this )?

Probe around first to see truly how serious she is. If she is not great! If she is serious start getting organized for a hechuv a challenge.

Take Care

[Dad111]

Thanks Mess . That was insightful. Staysingle. I agree to an extent. I'll probably stay with my son and parents for a couple if days until cooler heads prevail. I sent her an email asking for options and to at least get a temporary order till things get sorted out. I'll talk to someone first thing tomorrow till things get sorted out.
I do have her email stating she wants to move and not wanting me to be part of his life.

Staysingle just curious about the comments about the girlfriend situation?

[staysingle]

A full blown custody battle that takes years to finish will cause a lot of strain on your relationships. Some stay and support, some head for the hills !

That's good you have an email stating her intentions. Try and get more of that. Also, start the process of objectively proving your current shared regime and your extensive involvement with your son.

Regardless of what happens, the writing is on the wall for a separation agreement completed.

An earlier post was worried that if she left/bolted it would take 6+ months to year this in court thereby establishing a new status quo. No it wouldn't, If she bolted then your emergency motion ( usually within a week to be heard) is suddenly very justified.

Good luck

[staysingle]

Also, if you wish you can PM and I can share with you all my emergency motion paper work with you . It cost me a small fortune but it was expertly completed. There is a lot of work that goes into the filings. We decided to delay filing for nearly a week just for the paper work to catch up. Either way let me know. It may be worth it to familiarize yourself with the form , etc.

[Mess]

Staysingle has good advice but I have to add that if she starts packing you simply have no choice. Right now you have no court order defining custody and access. You must start building factual records now.

[HammerDad]

Should she advise you, at any point, that she would like to relocate WITH the child, changing the current parenting schedule, TO START you email her to state that while you are comfortable with her relocating, you are adamantly against any relocation of the child, especially one that would significantly alter the current parenting schedule.

Should she want to move, fine. She can move. But should she reply to your email with anything but "ok we're staying", you file a restraining order in court restricting the residency of the child to the child's current school district. Should she try to move then, she is in contempt of court and risks losing custody entirely.

But your communications (all of which should be via email) should be business like and simply say, you are not in agreement with any relocation of the child with would alter the current parenting schedule. Rinse and repeat when she comes back with anything but "fine, we'll stay".

You've got 40% of the time now, her move would likely give you less then 15% of the time. Fight for it, but fight smart. Start with advising, in writing you do not agree with relocating the child, then move to courts to restrict the childs location and finally (should she move anyway) file with the courts for an emergency hearing returning the child to its familiar location and ask for custody and supervised access for your ex.

Edit - And I hope you've been documenting ALL of your parenting time with the child. If not, start a journal and go back as far as you can remember.

[Dad111]

How do you document parenting time and what can you use as proof? I have lots of pictures but how does she prove otherwise ?I'm a little confused about this scenario.

He doesn't have a school district as he is 4 and in daycare still.There was no jk in our areas so we decided to keep him in the program they have at his current daycare for the time being.

[Mess]

One thing that I documented (didn't end up needing it) was pick ups at daycare, the parent always signs the child out.

If you don't have that, keep in mind that she can't document her time with the child either.

Ideally you need some independent third party witness to sign an affidavit stating that you always had the child whatever days (3x a week or whatever).

If you can't then it is your word against hers.

It would be a real lunatic who would claim to have the child full time if they didn't. At this point you pull out all the stops.

Keep in mind that in litigation, each party discloses their facts and arguments long before the trial. If your ex is going to lie and say you didn't have the child then you deal with it as you can.

Absolutely keep a journal or notebook calendar detailing every time you had the child, pick up and drop offs, what activities you did, etc. Make yourself visible at the school/daycare. Stay involved with activities.

I dropped off and picked up my child at piano lessons every week, that was at least one day I could get a third party to verify. I dropped off my child at school, I could get the teacher or secretary to verify they saw at school 3x a week. Etc etc. Do what you can.

[Dad111]

Current Situation:

Friday picked up son at daycare.Mom told me not to as its not my day.I said I'll bring him back Saturday as we would not be going to the cottage and she would not let me get him so I may as well get him now.

She called me later on in the day saying she was in my apartment. I left my son with my parents and went back to make sure the door was locked. She appeared out of nowhere asking for our son.I quickly went inside and locked the door. She stood outside banging for 30minutes or so. I told her I was calling the cops.

I called her brother first and explained what was going on.He said just call the cops.The cops came and sent her home.Told me to get a court order to prevent this .

Spent Saturday and Sunday with our son at my parents. I emailed her asking her to try and resolve things in a positive manner and put everything behind us. She did not respond.

I talked to her brother and he said shes being stubborn and will never sign anything.She is also saying what I'm doing is illegal and my parents are accessories. That as soon as I leave him with them to go to work that they are breaking the law because this is against her wishes. Is there any truth to this?