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  • Urgent Help Needed – Child Custody

    I can see that our common-law relationship is nearing an end, and I’m seeking some help and advice from the many experts on this site...


    My situation:
    1. Common-law relationship for 6 years, have a 4-1/2 year-old girl;
    2. Have sole custody of a 15 year-daughter from a previous marriage since she was less than 3;
    3. Been living in my house (in my name, mortgage has just been paid off). She has not contributed to anything for mortgage/tax/utilities/phones etc;
    4. I earn over twice as much as she does (she brings back home about 32K);
    5. <?XML:NAMESPACE PREFIX = O /><O< div O<>She told me that her lawyer informed her that mostly likely she would get full custody for the little girl because she is small and should stay with Mom. -- Is this true?<O< O< font>
    My questions are:
    • 1. Does she have a case to get full custody for our common child, as she tells me? What’s the chance of her getting the sole custody (or my chance of getting a shared 50/50)?
    • 2. Since the house is in my name, so I guess she needs to find a place to move out. But can she automatically take the 4-year old away with her?
    • 3. Will she get spousal support automatically (I think this is what she assumes), and if yes, for how long? Will the court/law approve SS just because she earns less? -- What does the Law say?
    Now my arguments for the 50/50 are as follows:<O< div O<>
    1. Will the court ever consider 50/50 shared custody so that at least the two girls can be together for more time? Even though they are half-sisters, they are fairly close and my elder daughter has been baby-sitting the little one a lot;
    2. I have been doing a good job with my bigger girl, who is doing very well academically at school and in terms of character developments;
    3. I have extended family around whereas she doesn’t. My parents and my two sisters’ all live very close to my house. Whenever anything unexpected comes up (kids getting sick), helping hands are always available. Will the court take this into consideration?<O< O< font>
    What should I do and get prepared? Just overwhelmed. Would appreciate any suggestions and help.</O<></O<></O<>
    </O<>

  • #2
    First I would stop listening to her when it comes to legal advice. And yes, her lawyer will tell her she could get custody because that is exactly what your STBX wants to hear.

    If this relationship is doomed, what you need to do first is:

    1. stop talking to the ex about anything not relating to the children.

    2. by a digital voice recorder and wear it 100&#37; of the time in the house. It can't prove parenting in court, but should things get ugly and she realizes that you will fight her on custody, she may take the easy route and file a false claim of domestic violence, have you removed from your home and give her the upper hand moving forward. The recorder will be gold against any false allegations. So always be civil, business like and calm in her presense. Download the recordings each night to a secure computer, one that she cannot access.

    3. Journal your daily activities with the children. If you make them breakfast, you journal it. If you take them to school, tuck them in, help with school work, you journal it. If you child babysits, I would journal that too.

    4. Become more involved in parenting if at all possible. Your focus is your children.

    From there you need to stay calm and focused. Do not for any reason leave the house (even though it sounds like you won't). Should she try to leave with the child, get a lawyer and file an emergency motion to have the child returned to the matrimonial home. She cannot just leave with the child unless you let her (now with all that said, you cannot physically stop her from leaving with the child. But you can let them go and on very next day you head over to the court ask for the child to be returned and custody). She can leave, and you can help her pack her bags, the child remains in the house.

    You may be on the hook for SS, but it is a common law relationship. There are others here that are better when it comes to SS (I was never married or common law with my ex, so I have no experience).

    She may also be entitled to a portion of the equity in the house. So be prepared for that. I am not talking 50% of the equity, I am talking the increase in value in time she lived there.

    I would suggest speaking to a lawyer though and prepare yourself. Filing for custody first may not even be a bad strategy, as at least it keeps the child in the house until an parenting agreement is established.

    You have a very good case for 50/50 IMO. You own the house the child grew up in. You have a sibling to that child in the house. And you have a strong support group local to you in your family. Just don't blow it by agreeing to allow her to leave or making a stupid mistake which would green light a false DV claim.

    Comment


    • #3
      . Does she have a case to get full custody for our common child, as she tells me? What’s the chance of her getting the sole custody (or my chance of getting a shared 50/50)?


      50-50 physical w/ joint legal is your right from the second you separate, as it is hers. It's proven to be in the child's best interests.

      2. Since the house is in my name, so I guess she needs to find a place to move out. But can she automatically take the 4-year old away with her?
      Since you aren't actually "married" then any claim she would have to the home would be only 1. what she contributed and/or 2. the increase in value of the home during the period of time you were together.

      If you were married she'd get 50%, period. She cannot automatically take the 4 year old with her. If she tries, you run your ass to a lawyer and file a motion to have the child returned to the home until custody/access is arranged.

      . Will she get spousal support automatically (I think this is what she assumes), and if yes, for how long? Will the court/law approve SS just because she earns less? -- What does the Law say?
      You don't say how much you currently make. What is YOUR after tax income as compared to hers? If she qualifies, it'd be for very little and only for 3-6 years. (closer to 3 I'd suspect).

      With a common child, if she's within 41-46% of your Net Disposable Income, AFTER child support is paid/received, then no she doesn't qualify. If she's under, then the amount of spousal you'd potentially be on the hook for is whatever amount is short.

      Your best bet is to pay for an hour of time with a lawyer to get answers to these questions and some direction. Spousal calculations can vary (widely) from province to province and situation to situation.

      Comment


      • #4
        Thank you both for your replies, which really gave me some boost...

        I make 68K, she does 32K, before Tax. She does most of the cooking and I bring the kids in outdoor activities and do the yard work etc.

        Now is there a rule that defines a 'small minor' (in her term)? I know for a 2~3 year old, probably it's logical for the kid to be with mom, and in some cases when teenagers or even 7~8 year olds are involved the Judge may even seek their opinion as to which parent they prefer to stay with. But do you think she can use our girl's age (4-1/2) as a strong argument for that? This is my main concern and the area I'm not very clear.

        I think she has started to look for alternative day cares which are close to her work place. Well, it's not surprising that she doesn't want to live near. But does she have a bigger say in the Day Care arrangement, or even where to register for next year's Pre School Kindergarten?

        From what you have suggested, it seems that the child would stay in my house until a court order is issued for access/custody. Is this a given, i.e., only after a judgment is made in court before anyone can 'move' or 'hold' the child? I feel sad. I just don't see we can work it out by ourselves.

        Comment


        • #5
          You have had sole custody of your first girl since 3yo, so that's a big advantage. An even bigger advantage if you have been the 90&#37; caregiver when she was little (as opposed to a 50-50 arrangement).

          Most arguments for 'young kids need mom' are based on the presumption that mom has been doing 90% care, and so that should continue (and that somehow she meets kids' needs better than dad due to being female). This ties into the 'Tender years' doctrine which has been officially struck down... but unofficially still persists in the courts. Officially though the most relevant issue is your current roles as parents (the status quo), and the degree to which you can cooperate. If there is any conflict/non-cooperation, you have a big danger of being painted as the problem (those overbearing, conrtrolling, dominating men!), and this is how she can justify sole custody to her. BEWARE! Your defense is to show full cooperation and willingness to support her as mother (i.e. show that you won't try to alienate your daughter from her mother).

          Also the argument comes from the fact that men typically earn more, so, hey, its best for the family if he focuses his time on being out there working while mom looks after the kids. 'Dad is the wallet'. A human rights minefield there if this is used as an argument that you should have less time than mom with your daughter!

          The more involved you have been in the day to day (bathing, comforting, playing, feeding, putting to bed etc), the stronger your case will be.

          You said "I know for a 2~3 year old, probably it's logical for the kid to be with mom" STRIKE THAT THOUGHT FROM YOUR BRAIN!
          Last edited by dinkyface; 01-26-2011, 04:42 PM.

          Comment


          • #6
            A 3y/o needs both parents equally. Or, more accurately, EVERY CHILD needs both parents equally.

            The tender years doctrine was thrown out the window long ago. And unless you do something stupid, like agree that the child needs mom more, you are in good shape.

            Just document your involvement, be a good dad and DO NOT get caught up in any drama with your STBX.

            Comment


            • #7
              Originally posted by dinkyface View Post
              you said "i know for a 2~3 year old, probably it's logical for the kid to be with mom" strike that thought from your brain!
              Got it! How right!!

              Comment


              • #8
                Originally posted by HammerDad View Post
                Just document your involvement, be a good dad and DO NOT get caught up in any drama with your STBX.
                Do we really need to go this far for Digital Voice Redorer or documenting daily activities? What if she disputes that as proof?

                Would Judge/Court recognize this as evidence?

                Comment


                • #9
                  Funny story: I was with my 3yo girl visiting my first (nice) ex's parents. And DD had to pee. So I took her inside and helped her with her business.

                  Afterwards, my ex's dad (about 80) commented IN AWE that I was CAPABLE (as a man) to do this.

                  A real eye opener that this mindset does exist.

                  Comment


                  • #10
                    The DVR is to protect you against criminal charges, not for the day to day routine stuff.

                    When the police come knocking....

                    Seriously....

                    Comment


                    • #11
                      98% of the time you will settle this without a trial.

                      In 2% of cases you will go before a judge, have a trial and have a judge rule on it all.

                      The documentation is in case you wind up in that 2%...she can dispute it all you want. Document EVERYTHING. Doc's appts, dentist appts, Parent teacher stuff, ALL OF IT.

                      I realize the child is too young for parent teachers, but you get the idea.

                      If the kid had a checkup, or went to the dentist, you should have either receipts from that day, the appt. card, etc. that will also be used as proof you went.

                      Comment


                      • #12
                        If it looks like it's going to a trial you can get her to settle when you produce the log you kept showing how much time you spent caring for the 3 year old. She will spend the next year telling her lawyer, her relatives and her friends that she changed every diaper while you drank beer in front of the TV. You won't get near a court house (in a worst case scenario) for a year or more; you need these details written down because when your lawyer asks you what percentage of time you took care of the child you need to answer something more definitive than "Ummm..."

                        Comment


                        • #13
                          Acura.. Run to the nearest store and get a digital recorder as dinkyface suggests. Trust me when I say it WILL save your bacon when faced with Criminal charges. Also document EVERYTHING.

                          Comment


                          • #14
                            Originally posted by Acura View Post
                            Do we really need to go this far for Digital Voice Redorer or documenting daily activities? What if she disputes that as proof?

                            Would Judge/Court recognize this as evidence?
                            Simple answer is yes.

                            The false DV claim is the simplest way to get you out of the house and give her defacto custody of the children until you fight to have it dismissed. In the mean time, you've been dragged off in handcuffs (possibly in front of your kids or coworkers) labeled wife beater and have to pay a lawyer to fight the DV claim AND a family law lawyer to fight in family court to see your kids. Then once you actually get to see your kids, it will probably supervised access, and you will pay full c/s.

                            I've been around these boards for many many years now and read literally HUNDREDS of these stories. Seriously, get the freaking recorder. We aren't suggesting it because we have stock in Panasonic.

                            Normal scenario is she realizes that she isn't going to be able to steam roll you. She talks to her fellow Hens and they mention "if he ever raises his voice to you call the cops" and then you are bent over taking it from king kong from that point forward.

                            The recorder is useless when it comes to determining parenting and is completely inadmissible in court (unless she consents to being recorded), that is why we recommend journalling your activities with your kids. But should she try to pull the false DV complaint, you have that in hand, you play it back to the cops and she is one possibly getting hauled away for filing a false report.

                            Trust us, it is worth its weight in gold.

                            The journal will show the courts that you aren't the lazy uninvolved bum she is going to try and paint you as.

                            See, you have an opportunity to not be one of those guys I shake my head at down the road. The guy that doesn't do anything and isn't prepared for what this process is about. edit - the guy that comes on here after the DV claim is made or years down the road complaining how the system shafted him because he pretty much allowed it to happen. The system is sexist, you must fight that with proof or you will become a visitor in your kids life.

                            Yeah, we all hope for the best. But you MUST be prepared for the worst.
                            Last edited by HammerDad; 01-26-2011, 10:18 PM. Reason: just a bit more

                            Comment


                            • #15
                              Originally posted by HammerDad View Post
                              The recorder is useless when it comes to determining parenting and is completely inadmissible in court (unless she consents to being recorded), that is why we recommend journalling your activities with your kids. But should she try to pull the false DV complaint, you have that in hand, you play it back to the cops and she is one possibly getting hauled away for filing a false report.
                              Just to clarify, the recording would be admissible in criminal court, but generally not in family court. To be admissible evidence has to be relevent and most family court judges don't want to bother listening to recordings, and generally speaking a recording isn't relevent to the type of things you argue in family court. A recording about how she secretly is earning 10x what she claims on her tax return, possibly.

                              Meanwhile if you are criminally charged you have every right to produce evidence showing your innocence. In Canada there is what is called "one party consent" meaning that as long as one party to a conversation (i.e. you) that is aware of the recording then it is legal to record, and therefore admissible as long as it is relevent. It is trickier if you are a police officer but for a defendent you can use a recording you made to show your innocence.

                              Comment

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