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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 04-02-2011, 06:35 PM
Linear Linear is offline
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Default Custody Variation (Joint to Shared) - Change in Circumstances?

Background:
Joint custody agreement (7 years status quo)
Children are 11 and 8
Mom has primary care, remarried with new child (children's half-sister)
Ex has access each Thursday@supper to Saturday@supper


We served the ex with a Notice of Motion for a variation in CS two weeks ago. Today, my wife was served with what we thought would be the ex's responding document to our Motion, however, he's decided to file his own Motion seeking shared custody.


According to the Divorce Act:

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.


The only change in circumstance exists with the ex. As his self-employed work schedule can be easily changed, he is able to work every other week if he'd like to. Could this be interpreted as a change of circumstance to the child?

We're not *too* worried about her ex's Motion being successful, we'd just like to prepare a well put together Responding Document. However, I can't help but worry about how it would affect the children if they were suddenly separated from their half-sister and vice-versa. They're all extremely close.

Also, since we have a trial date in May for Motion to vary CS and now this one in June, would it be likely they would be held together?

Thanks,
Linear
  #2  
Old 04-02-2011, 06:51 PM
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Aren't the kids already separated from their half-sister Thursday night to Saturday night? If it was one more night how would that be a sudden shock to them?

Do the kids want to see their dad more? Do they enjoy the time they have with him? Is having him involved in their lives a good thing?

These are they type of questions you will be presented with.

My lawyer always said to me that custody is never permanent, it can always be reopened, but we never expanded on what that meant. I'm not sure how it applies to the divorce act.
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Old 04-02-2011, 10:14 PM
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"Aren't the kids already separated from their half-sister Thursday night to Saturday night? If it was one more night how would that be a sudden shock to them?"

That's correct. However, I think it's important to look at this from the perpective of the child. If we consider my daughter, their half-sister, she gets to spend time with her sisters Thursday mornings before school. They watch TV, have breakfast and squeeze in a little play time before school/daycare. She then has sleepover parties with her sisters and their friends on Saturday nights. So she only goes 1 day a week without seeing her sisters. Should the ex be successful in his Motion, she would go a week without spending time with them. That might not be such an issue her sisters were a lot older than her, but they're in the age range where the play together a lot - again, they're very close siblings.

"Do the kids want to see their dad more?"

I'm sure they would love to spend more time with their dad, but not so sure at the expense of less time with our family. They have never asked for more time however.

"Do they enjoy the time they have with him? Is having him involved in their lives a good thing?"

Yes they do and yes it is.

Really the only question is what is in ALL of the children's best interests. It would seem to me that changing the status quo that has been working well for 7 years and splitting the children and their half-sister up for alternating weeks is not an appropriate plan.

Linear
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Old 04-03-2011, 03:04 AM
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Great time to change to a 50/50 so that the children can be raised equally by both their parents.

It does not seem fair to block this move by their dad - you should embrace it!
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Old 04-03-2011, 08:14 AM
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Quote:
Originally Posted by Linear View Post
However, I can't help but worry about how it would affect the children if they were suddenly separated from their half-sister and vice-versa. They're all extremely close.
Evidently, Dad seems to think that his relationship with HIS CHILD is important too.

"Suddenly"? Excuse me, are babies being wrenched SUDDENLY from their half sister? Is the world going to Hell in a hand basket?

Holy Crap, never ceases to amaze how people can't see past their own nose.

Get a grip!!!
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Old 04-03-2011, 09:21 AM
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I note that the opening line had to do with CS and not the child(ren). Just sayin'

Cheers!

Gary
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Old 04-03-2011, 09:24 AM
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Quote:
Originally Posted by Linear View Post

"Do the kids want to see their dad more?"

I'm sure they would love to spend more time with their dad, but not so sure at the expense of less time with our family. They have never asked for more time however.
Wrong. The court will look at the child/parent relationship before anything else. You are asking him to agree to an arrangement you would never be ok with, how is that the right, responsible or fair thing to do for either the child or the parent?

Your other child(ren) do NOT come into play at all when determining how much time your daughter should be spending with her dad.

I seem to be saying this a lot lately but...I agree with bill.
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Old 04-03-2011, 09:30 AM
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Quote:
Originally Posted by Linear View Post
That's correct. However, I think it's important to look at this from the perpective of the child.

I'm sure they would love to spend more time with their dad, but not so sure at the expense of less time with our family. They have never asked for more time however.
Then look at it from the perspective of the child, not from yours.

Do you not see what you have said above?

You are clearly saying that your family, and particularly your daughter's half sisters, are better/more important for your child than her father. Quaint.

As for asking for more time, maybe they haven't before but they are now.
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Old 04-03-2011, 01:08 PM
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So let me add a bit more info into the thread. Our original thread with a more complete background can be found here.

The important information to take from the original thread is that the ex threatened my wife that she would regret seeing a lawyer for financial disclosure/varying CS. When my wife did acknowledge that she spoke with a lawyer, the ex retained his own attorney and sought shared custody. Later when my wife asked him why he was suddenly seeking a change in custody he replied "I told you to leave things alone, this is what you get." This was actually stated on numerous occasions.

So eventually they tried collaborative law which was unsuccessful. My wife eventually told her lawyer to let the issue drop as things were getting too expensive. She also informed her ex she would not be filling a Motion to change CS. The ex then informed his lawyer not to proceed with a Motion to change custody.

Jump ahead roughly 9 months. My wife decides to file for a variance of CS self-rep. The ex's response, once again, is to retain his lawyer and now file for a variance in custody. Do I believe he truly wants his children 50%(Alternating weeks) - no. Do I believe he's once again being vindictive? Yes, I'll take him at his word.

It should also be noted that his ability to manage his own self-employed schedule is not something new. He's had this ability for several years. It's clear why he's seeking this variation.

""Suddenly"? Excuse me, are babies being wrenched SUDDENLY from their half sister? Is the world going to Hell in a hand basket?
Holy Crap, never ceases to amaze how people can't see past their own nose."

My wife and I both see far past our respective "noses". Although her ex has access 2 days/wk, my wife has always allowed him access closer to 45%. She has never been a stickler for the status quo and routinely allows the ex extra time when he arrives in town a day early or wants to keep them an extra day here or there. Just yesterday, an hour after receiving his Motion to change custody, he emailed her to ask for an extra day next weekend to take the kids away to their cousins for a Bday party. Her response was "They're going to love that, have fun". Compared to most of the stories I've read here my wife is a saint. So if my wife already gives closer to 45% access, why not just make it 50%? We want to consider the affect of separating the children for a week at a time. Maybe it's not a big deal, maybe it is ...

"Your other child(ren) do NOT come into play at all when determining how much time your daughter should be spending with her dad."

During their collaborative law meeting her ex made this same statement. His own lawyer told him he was wrong and, at least here in NB, Judges will consider the effects of custody change on all children of the households.

And go .....
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Old 04-03-2011, 01:49 PM
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In terms of the ethics here, I think you should get off of your high horse.

In a mediated solution or through collaborative law, support amounts are usually going to be a compromise, not automatically table amount. There is no necessity to go after table amounts or yearly increases, this is what the courts do automatically to simplify case decisions and provide the same result to everyone.

Do the children need an increase in support or not? If they really really need it, why back off when the father seeks a change in access levels? If there is good reason that is in the best interests of the children you should follow through and get it settled.

The bio father's situation is that he is just under 40% but he's very close. Guess what, he is supporting the children while they are there but you are seeking 100% support payments. From his perspective he is getting taken. It makes more sense to him to have the kids a few extra percent and spend the money while they are with him, rather than overpay you. Please note, this is HIS thinking, you see it differently, they courts may see it differently, but there are many sides to each story.

We are all jackasses at various times, we are all saints other times, and when we put the children first sometimes that includes looking at the bank balance and deciding what the best way to budget is. The courts don't like custody that is decided strictly for financial reasons, no, but financial stability in a household IS often child-centric. That's why some custodial parents seek increase in support. That's why some non-custodial parents seek that increase from 35% to 40%.

If you want to fight it out in court, then accept the comments given on this thread as examples of what the father will bring up. If you want a mediated solution, then accept that HE IS ALREADY OFFERING A COMPROMISE. His offer from his perspective is that he pays the current amount and stays at 35% or he moves up to 40% and pays set-off. That is what he is considering to be fair options. That doesn't make him the devil.
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