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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 08-22-2015, 11:23 PM
ninehundredt ninehundredt is offline
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Default Consequences of Withholding Access

My ex was arrested and charged several weeks ago. She now has a 'no contact' order, which in effect makes our child exchanges more difficult now because a third party must be involved. I contacted one of the centres which offers these exchange services and initiated the process. My lawyer in turn contacted my ex to pass on the information so we could get the ball rolling and have access restored.

Rather than doing the right thing and cooperating so I can see the kids again, she is taking advantage of the situation in order to keep them from me as long as possible. My lawyer is now in the process of drafting an emergency order and a motion to change. Unfortunately we all know how long the court process takes, so it's unlikely that I will see my kids again for some time.

To add some perspective (back story), while I had pursued a joint custody agreement, the judge determined that it would not make sense as my ex was unwilling to work with me...and so she ended up with sole custody, and I was granted regular access.

In light of these facts I'm wondering if anyone with a similar experience can chime in:

1. What consequences does she face for behaving like this? I have heard stories about parents dodging court orders, and it's unsettling to think that she could potentially continue to withhold access.

2. This is the first incident since we reached a custody agreement several months ago. How much more does she have to screw up before there is a realistic potential for me to make a successful claim for custody?
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Old 08-23-2015, 12:19 AM
Links17 Links17 is offline
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Quote:
To add some perspective (back story), while I had pursued a joint custody agreement, the judge determined that it would not make sense as my ex was unwilling to work with me...and so she ended up with sole custody, and I was granted regular access.
Wait, so she didn't want to cooperate with you and so she got custody?
How do you define "regular access"?
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Old 08-23-2015, 12:21 AM
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LovingFather32 LovingFather32 is offline
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Get that emergency order NOW! Dont let your lawyer delay this process. Emergency motion can be heard within a few days.

Your ex sounds like she's making some big mistakes at the moment. Arrested/Charged .. Denying access? Doesn't sound like a responsible custodial parent to me.

Were there other substantial reasons she got sole? Judges dont always buy one parent saying they cant communicate. (i.e - parallel parenting, etc).

Whats her reason for access denial? Has her lawyer reached your lawyer yet?

She is in contempt of the order specifying access at the moment. Charged/arrested too.

I don't know enough about your case to give my opinion of custody change .. but I can say that any judge would not look favorably on her recent actions.

Now .. Get that EM and go get your kids back. First thing next week!
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Old 08-23-2015, 11:03 AM
ninehundredt ninehundredt is offline
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Originally Posted by Links17 View Post
Wait, so she didn't want to cooperate with you and so she got custody?
How do you define "regular access"?
Basically yes. Judges don't like to grant joint custody to parties that refuse to communicate with one another. So by virtue of being stubborn, one party can effectively force sole custody. It also helps that primary custody is often given to mothers to begin with.

I could have stayed the course and gone to trial over it, but it would have been a losing battle...and a very expensive one at that.

By regular access I mean alternating weekends, and an evening or two during the week. Also holidays and vacations...etc. Fairly frequent access.
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Old 08-23-2015, 11:12 AM
ninehundredt ninehundredt is offline
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Originally Posted by LovingFather32 View Post
Get that emergency order NOW! Dont let your lawyer delay this process. Emergency motion can be heard within a few days.

Your ex sounds like she's making some big mistakes at the moment. Arrested/Charged .. Denying access? Doesn't sound like a responsible custodial parent to me.

Were there other substantial reasons she got sole? Judges dont always buy one parent saying they cant communicate. (i.e - parallel parenting, etc).

Whats her reason for access denial? Has her lawyer reached your lawyer yet?

She is in contempt of the order specifying access at the moment. Charged/arrested too.

I don't know enough about your case to give my opinion of custody change .. but I can say that any judge would not look favorably on her recent actions.

Now .. Get that EM and go get your kids back. First thing next week!
Already on top of it my friend, and confident that there will be a resolution in time. She is taking the maximum amount of time she can to respond to communications with the lawyers. I'm certain there will be consequences, but not sure how it will affect the big picture.
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Old 08-23-2015, 11:47 AM
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Can you arrange for a third party (friend or family member?) to do the exchanges until exchange centre is in place so you don't miss out on time? Have your lawyer send a letter saying that you will be sending someone to pick up the children for your regular access on XX date and time and that refusal would be considered denial if access and withholding.
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Old 08-23-2015, 11:58 AM
ninehundredt ninehundredt is offline
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Originally Posted by blinkandimgone View Post
Can you arrange for a third party (friend or family member?) to do the exchanges until exchange centre is in place so you don't miss out on time? Have your lawyer send a letter saying that you will be sending someone to pick up the children for your regular access on XX date and time and that refusal would be considered denial if access and withholding.
Already been there and done that. After she refused to allow for a family friend to do the exchanges I initiated the application with an exchange centre. The exchange centre has immediate availability, but they need her to call to continue the application process I started.

This is why I'm curious about the consequences for her, as she is refusing to cooperate unless she is forced by the courts.
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Old 08-23-2015, 12:13 PM
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here is a recent Ontario case where mother was held in contempt regarding her withholding access:

https://www.canlii.org/en/on/onsc/do...5onsc5240.html

It looks like "make-up time" was the consequence.
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Old 08-23-2015, 12:23 PM
ninehundredt ninehundredt is offline
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Originally Posted by arabian View Post
here is a recent Ontario case where mother was held in contempt regarding her withholding access:

https://www.canlii.org/en/on/onsc/do...5onsc5240.html

It looks like "make-up time" was the consequence.
Interesting read. I'm actually surprised that the dad was even granted 'make-up time' considering how poor his track record is with following the previous court order.
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Old 08-23-2015, 12:49 PM
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Quote:
Originally Posted by ninehundredt View Post
Basically yes. Judges don't like to grant joint custody to parties that refuse to communicate with one another. So by virtue of being stubborn, one party can effectively force sole custody. It also helps that primary custody is often given to mothers to begin with.

I could have stayed the course and gone to trial over it, but it would have been a losing battle...and a very expensive one at that.

By regular access I mean alternating weekends, and an evening or two during the week. Also holidays and vacations...etc. Fairly frequent access.
For other dads reading this, if you fail to go to court for custody and the claim judges will do X, Y or Z. You are not helping yourself, the children or other fathers in the future. The only thing that the record & statistics will show is that you consented to the mom having custody.

When mothers have sole custody, moving away is VERY easy as long as it isn't for a frivolous reason.

Changing the status quo that you consented to also becomes VERY hard.

Also EoW is basically being relegated to a non-father, clown and bank machine.

In your case ninehundredt, I would use this situation as a change in circumstances and file for shared custody.

My ex recently assaulted me too and I didn't file precisely because the cops said it would make exchanges harder.
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