what is best way to win such motion? case management judge has stated he/she would grant a leave to bring the motion. what is generally required to win these motions? what could i except the other side to argue to oppose it ? case proceeding has been ongoing for quite some time now.
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Originally posted by Janus View PostWhat is a win?
What do you want?
What does the other side want?
What evidence do you have?
What evidence does the other side have?
The judge was leaniant to my position to get the OCL involved at the last SC. the judge was specifically concerned that this proceeding had become contentious, has been ongoing for almost 2 years and stated that the child needs a voice.
what evidence do I need? what evidence does the other side need?
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Originally posted by arabian View PostWhat is your 2-year struggle about? Please elaborate on what, specifically, has become contentious.
I think it would be helpful if you provided more information.
what has become contentious:
the other side will not agree to before/after school pickup drop/offs, let alone anything more than every other weekend access.
other side will not agree to equal sharing of holidays
other side will not agree to joint-custody
additionally:
professionals working with child have recommended counselling, but custodial parent has not acted on that recommendation. I have proposed counselling to other parent following the proper expected process. opposing party doesn't sound too inclined.
custodial parent has enrolled child in subsidized daycare, I am seeking to look after child as opposed to subsidized daycare, and would like child to be enrolled in before/after school program at her school for when custodial parent is not available. presently the child remains in subsidized daycare and is in homedaycare all summer long.
there is alienation going on by the custodial parent and other members of her family.
custodial parent has hidden information from 3rd parties
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There, you have finally provided information
Originally posted by number1dad View Posta motion to change sole to joint custody, and to change a very limited every other weekend access to 5-5-2-2 schedule with an equal sharing of holidays.
There was no independent legal advice on my end
the other side will not agree to before/after school pickup drop/offs, let alone anything more than every other weekend access.
other side will not agree to equal sharing of holidays
other side will not agree to joint-custody
professionals working with child have recommended counselling, but custodial parent has not acted on that recommendation.
2) Parents are allowed to ignore recommendations. That is the difference between a recommendation and, say, a court order.
custodial parent has enrolled child in subsidized daycare, I am seeking to look after child as opposed to subsidized daycare, and would like child to be enrolled in before/after school program at her school for when custodial parent is not available. presently the child remains in subsidized daycare and is in homedaycare all summer long.
there is alienation going on by the custodial parent and other members of her family.
custodial parent has hidden information from 3rd parties
What kind of 3rd parties?
Offhand, parents have the right to not tell people things.
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Originally posted by Janus View PostWhy is the current schedule not working for the kids?
Originally posted by Janus View PostIf you were arguing a spousal support order, that would be important. You are arguing a custody order, so your rights have no relevance. All that matters is the kids, nobody cares about the legal advice you may or may not have received.
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Originally posted by Janus View PostNor do they have to. You are entitled to the access specified in the agreement. How would the children gain from seeing you more than every other weekend? What has changed from the time you agreed to only see them every other weekend? Why are you changing your mind?
Originally posted by Janus View PostIf you are able to open up custody, you should be able to get this. That said, I'm not convinced that you will be able to change anything.
Originally posted by Janus View PostHow has the order for sole custody hurt your kids? Do you have any specific examples?
Originally posted by Janus View Post
1) What kind of professionals?
2) Parents are allowed to ignore recommendations. That is the difference between a recommendation and, say, a court order.
2. the custodial parents decision to ignore the recommendation contradicts her previous acts and not in the child's best interests. the child could only benefit from the recommendation.
Originally posted by Janus View PostParents have the right to choose their own daycare options. Subsidized daycare generally requires that the child be there almost all the time. If you were going to take over, are you available 100% of the time? Does work ever interfere? What about illness, would you still take care of the kid if you were sick?
Originally posted by Janus View PostAlienation is a strong word. What evidence do you have of the alienation?
Originally posted by Janus View PostWhat kind of information?
What kind of 3rd parties?
Originally posted by Janus View PostOffhand, parents have the right to not tell people things.
I'd like to steer the focus back to my inquiry. How could I best present the motion to involve the OCL ? The judge is on my side for this request.
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conflict and disagreement will help you getting the OCL involved. That does not mean intentional conflict but rather holding on to your views, preferences, and opinions (as you have a right to do so). When those are in conflict to your other parent's views and preferences than that conflict has negative effect on the child. The issues should be then investigated by the OCL.
OCL is generally helpful to family law cases:
In the 2002 decision of Parniak v. Carter[17] the child was five years old at the time of the hearing of the father’s motion for an order requesting the involvement of the OCL or an assessment under the Children’s Law Reform Act. Kukurin J. considered Linton v Clarke and concluded that while a clinical issue may be an excellent reason for a court to order an assessment, it was not the only reason. He went on to refer to other advantages including the neutrality of the assessor which makes the report more palatable to each side and contributes to a possible resolution; the recommendations that are helpful to the parties, to their counsel and to the court; the expert opinion on issues may be helpful to judges who may be deficient in the areas of expertise of such assessors; that reports although often in hearsay form, provide information not otherwise available to the court. He noted that for those who regularly review assessment reports, the contents occasionally cast an entirely different light on the allegations of the parties and more importantly, are more inclined to be focused on the child than are the allegations of hostile litigants. He observed that the information in an assessment report may help the court to come to some decision on the credibility of one or the other litigant. He concluded as follows:
21. . . . Overall, assessment reports can provide a better understanding of the dynamics operating in [sic] family that is before the court – a family whose members in most cases are complete strangers to the presiding judge.
22. Although assessments should not be ordered in every case, neither should they be limited to those cases where “clinical issues” are involved. In absence of specific statutory criteria, the court has to weigh the factors in any particular case in deciding whether an assessment report should be prepared. Delay occasioned by the report may be a factor in the decision. Certainly, a judicial estimation of whether a case is not bona fide or extremely tenuous may contra-indicate an assessment.Last edited by trinton; 03-07-2017, 07:55 PM.
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I'd like to steer the focus back to my inquiry. How could I best present the motion to involve the OCL ?
Note that judges only request OCL to get involved. OCL has the discretion to decide if they will actually get involved, and they do not accept every request.
The judge is on my side for this request.
I have no idea how you would know that a judge is on your side, but if she is, then you win. That's the entire point of a court case, to get the judge on your side. Good job!
Since you have preemptively won your court case, you probably don't need any more help. However, for shits and giggles, I will respond to parts of your message.
Originally posted by number1dad View PostThe kids best interests are negatively impacted on an ongoing basis due to me not getting any independent legal advice.
The point is, I don't think arguing about ILA is going to help your case.
To be clear, I'm not saying that the lack of ILA didn't have an effect. Of course it did. You signed a terrible deal. What I am saying is that it is not a good reason in court to overturn a custody and parenting time arrangement.
Children benefit from having maximum contact with both parents. It can only benefit the kids.
In your case, the kids are thriving in the current situation, so there is no reason to change. Yes, I know that you think they are not thriving. You need evidence. School reports, medically diagnosed depression, hospitalization for self-harming behaviours. Something that is said by somebody who is not you.
I'm a fit and caring loving father.
Again, not saying that you are not fit. However, you can't just make a bald statement like that in court when you have already admitted to the opposite.
I re-iterate that I had no independent legal advice when the agreement was entered into.
I'm not changing my mind, I'm just trying to overturn an order
Decisions are made without any discussions or consultations with me
If you currently have joint custody, then she should be consulting you, and this is a reasonable point of argument as to why she can't be trusted. That would be good evidence as to why the current arrangement is not working. It is not working because she should be consulting with you and she is not.
If mom has sole custody, then this argument doesn't make sense. The point of sole custody is that she has the sole right to make all decisions.
Yes I am available 100% of the time. I have a very flexible work schedule and can even work from home. I have family that can look after the child when sick.
affidavit outlining behaviors and words expressed by child and observed by me.
Kids might very well be telling mom something entirely different.
child being coached to make false allegations to CAS against me in attempts to cut off the insignificant access that I currently have.
...and how do you know this is true?
...and don't say something like this in court without evidence. That is a serious allegation. If you come into court flapping your arms about the big conspiracy by mom regarding CAS you will just come across as a nutcase.
I'm not people. I'm the child's other parent.
Advice summary:
1) Have evidence to back everything up.
2) Assume that nobody will believe a thing you say, unless you have evidence
3) Stop talking about your rights
I think without OCL, you don't have much evidence, so hopefully they agree to get involved.
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Wow Janus - so much negativity and insults!
Originally posted by Janus View PostThis is because when it comes to the custody, the only test is "best interests of the kids". Since your rights are not part of the test, failing to have proper legal advice did not (in theory) affect the kids at all.
Originally posted by Janus View PostThe point is, I don't think arguing about ILA is going to help your case.
To be clear, I'm not saying that the lack of ILA didn't have an effect. Of course it did. You signed a terrible deal. What I am saying is that it is not a good reason in court to overturn a custody and parenting time arrangement.
Originally posted by Janus View PostCareful, maximum contact is one of the principles, but not the only principle. Judges routinely acknowledge maximum contact principles right before they cut out a parent because it is in the best interests of the children.
Originally posted by Janus View PostIn your case, the kids are thriving in the current situation, so there is no reason to change. Yes, I know that you think they are not thriving. You need evidence. School reports, medically diagnosed depression, hospitalization for self-harming behaviours. Something that is said by somebody who is not you.
Originally posted by Janus View PostYou probably are. Do you have evidence for this statement? Once upon a time, you gave up your children. By doing so, you admitted that your ex was a better parent, and that it was better for the kids to not be with you. Now you need evidence to overturn that admission that you made.
I don't need to prove I'm fit. The other parent has to prove be "un-fit". I did not give up my children and admit that it was better for the kids to not be with me. As per the consent order that you take as me "Agreeing to be unfit", though an very absurd argument for you to make, I re-iterate had no independent legal advice when I signed the agreement. The agreement however in no way shape or form state "I admit to being an un-fit parent by signing this agreement". If you reasoning is correct - then are you saying that when parent's are not given joint-custody because they don't get along it means that the other parent is un-fit ? Give me a break.
Originally posted by Janus View PostAgain, not saying that you are not fit. However, you can't just make a bald statement like that in court when you have already admitted to the opposite.
Originally posted by Janus View PostI seriously think you need to drop that. The worst thing in family court is a parent who is focused on their rights rather than the best interests of their child. It doesn't play well. Not even for mothers.
Originally posted by Janus View PostWas the order reached on consent or was it imposed by a judge? If it was reached on consent, then you are changing your mind. Since you are talking about ILA stuff, I'm assuming you signed a deal. Unfortunately, that's hard to take back.
Originally posted by Janus View PostI thought mom had sole custody. If so, she doesn't need to consult you at all. Perhaps I'm mixing you up with a different post.
If mom has sole custody, then this argument doesn't make sense. The point of sole custody is that she has the sole right to make all decisions.
Originally posted by Janus View PostWait, your evidence is that you are saying that your child agrees with your position? Are you serious? I can see why you need OCL. Be ready for some disappointment though. Kids almost always tell parents what they think the parent wants to hear.
If kids are telling the mom the opposit, and they are just telling her what she want's to hear, that would be a little disturbing don't you think?
Originally posted by Janus View Post...and don't say something like this in court without evidence. That is a serious allegation. If you come into court flapping your arms about the big conspiracy by mom regarding CAS you will just come across as a nutcase.
Originally posted by Janus View PostMom has sole custody. Honestly, you're not really a parent until you get joint custody.
Originally posted by Janus View PostAdvice summary:
1) Have evidence to back everything up.
2) Assume that nobody will believe a thing you say, unless you have evidence
3) Stop talking about your rights
Originally posted by Janus View PostI think without OCL, you don't have much evidence, so hopefully they agree to get involved.
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You may want to reread Janus's responses to you, once you've calmed down, and can be objective.
He's definitely not "anti-dad", and is simply trying to get you to refocus what your arcs are in this, as you seem to be focusing on the wrong things. Quite a few posters here tend to take an approach to these things that is definitely not coddling, as a sort of wake up call, or harsh reality check, before those they are responding to get run over by the legal system.
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Originally posted by Soiled View PostYou may want to reread Janus's responses to you, once you've calmed down, and can be objective.
He's definitely not "anti-dad", and is simply trying to get you to refocus what your arcs are in this, as you seem to be focusing on the wrong things. Quite a few posters here tend to take an approach to these things that is definitely not coddling, as a sort of wake up call, or harsh reality check, before those they are responding to get run over by the legal system.
What "wrong things" am I focusing on ? Can you elaborate?
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Originally posted by number1dad View PostWow Janus - so much negativity and insults!
You are going to possibly get the OCL... But for all the wrong reasons. In fact, based on your responses the judge may be on your side because the judge knows that the OCL will eat you alive and make their job really really easy when... they order against you and nail you with full costs.
Originally posted by number1dad View PostThere would have been joint-custody with proper legal advice, which would have been in the best interests of the child.
Your lack of interest in seeking proper legal advice before doing anything is stupid. It is most stupid when you do this when matters are concerning CHILDREN!
So, don't think you are going to get sympathy from a judge. THey will just ear mark you as "stupid".
Originally posted by number1dad View PostSole custody is hardly ever in the best interests of children unless the other parent is proven to be unfit.
Originally posted by number1dad View PostI don't think you're too knowledgeable in the area of ILA. It is always considered when parties seek to vary determinal consent orders.
Originally posted by number1dad View PostI'm sorry but our judges don't just cut out parents.
Originally posted by number1dad View PostWorst case scenario they order supervised access. Only in the extreme cases they cut off access. They're not going to cut off access to a caring and loving father who'se seeking to increase his time and has picked up extra time along the way.
Originally posted by number1dad View PostThe kids are thriving in the current situation? I don't know where you got that from? The evidence contradicts your opinion. Parents testimony are also taken in when credible.
"I didn't understand... wahhhh" - Unless you were medically unable to provide consent... You are screwed.
Originally posted by number1dad View PostI don't need to prove I'm fit.
Originally posted by number1dad View PostThe other parent has to prove be "un-fit".
Originally posted by number1dad View PostI did not give up my children and admit that it was better for the kids to not be with me.
Originally posted by number1dad View PostAs per the consent order that you take as me "Agreeing to be unfit", though an very absurd argument for you to make, I re-iterate had no independent legal advice when I signed the agreement.
Mentally incapable of consenting? Probably not.
You are stuck with what you consented to sir.
Originally posted by number1dad View PostThe agreement however in no way shape or form state "I admit to being an un-fit parent by signing this agreement".
Originally posted by number1dad View PostIf you reasoning is correct - then are you saying that when parent's are not given joint-custody because they don't get along it means that the other parent is un-fit ? Give me a break.
Originally posted by number1dad View PostYou've tried to classify me as "un-fit" numerous times in your post. I'm sorry but you are coming off as very "anti-dad". It's not a bald statement. It's the truth. I have never admitted to be un-fit. If I was un-fit, then why was I given access? Your thinking is absurd.
Originally posted by number1dad View PostYou're failing to realize that my primary focus here is the best interests of the kids. Not my rights. I could care less about my rights, I just want what is truly best for the kids. and that is joint custody with maximum contact with both parents.
Hire a lawyer. Stop bothering people on this site with nonsense.
Originally posted by number1dad View PostIt was a consent that was imposed by a judge. I had no independent legal advice when the agreement was consented to.
If a judge made an order for custody and access in a conference then you appeal it.
Originally posted by number1dad View PostSole custodial parents should still consult with the other parent, and 90% of the time, they are ordered to do so before making any major decisions.
Blah blah blah...
I wouldn't recommend you get OCL involved. You will get eaten alive by them.
Good Luck!
Tayken
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Originally posted by number1dad View PostWhat "wrong things" am I focusing on ? Can you elaborate?
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Originally posted by number1dad View PostWow Janus - so much negativity and insults!
I'm sorry but our judges don't just cut out parents. Worst case scenario they order supervised access.
Parents testimony are also taken in when credible.
I don't need to prove I'm fit. The other parent has to prove be "un-fit".
In your case, an order exists. There is a presumption that the order is correct and appropriate. The other parent doesn't have to show that you are unfit at all. She just has to show that the kids are doing well.
You, on the other hand, have the evidentiary task of proving that the current situation is bad. That is substantially more challenging.
If you reasoning is correct - then are you saying that when parent's are not given joint-custody because they don't get along it means that the other parent is un-fit ?
It was a consent that was imposed by a judge. I had no independent legal advice when the agreement was consented to.
Sole custody doesn't give them a right to make all decisions
especially so for S7 expenses.
Have you never heard of the terms "non-custodial parent" or "access parent" ?
This may come as a shock, but when the courts use that term it usually leads to access that is neither generous nor reasonable.
My point is that family law uses words that don't always mean what they appear to mean. They may call you a parent, but that doesn't mean you are a parent.
This is more of a philosophical question. What is a parent? Is it biology, or is it parenting?
Doesn't sound like you're an expert in this area
I'm sorry but you are coming off as very "anti-dad".
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