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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 07-24-2012, 07:13 PM
Just&Fair Just&Fair is offline
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Question Read this & tell me what you think

Ok,

Some of you are aware of this case: Tulchinsky v. Shuster

Less than a month ago, I come home and find the house empty of its furniture’s. Most of the stuff gone. Ex common-law partner left a note saying that she moved-out with the child and that I can only contact her by email. No details on where she went with the kid. I wasn't aware of anything until I got home. There was no domestic abuse, violence or threat of any kind in the relationship or to the child.

Without giving too much details (nothing illegal), I was able to track her down to this new place that she rented. For the week that followed, she let me see the kid when I asked, but never pass naptime, dinnertime or bedtime. She refuses any overnight stay. Then one day, I told her that I want joint and shared custody and this is where things get complicated.

I proposed a shared schedule to her that includes overnight stay. She doesn't say anything. On the first day of my proposed schedule , she's unreachable. I then get an message saying that because of the child's age (2 years old), it's too early for overnight stay and as the primary caregiver, she will not allow it.

For the next couple of days, she refuses to tell me when will I be allowed to see my child. Then I retained the services of a lawyer and we're able to restore some access, pending mediation. First meeting of mediation done and she still gives me a schedule with restricted access, with no overnight stay. It seems that the only thing left is court, with everything that comes with it.

Given the fact that I've been a good player so far and what seems to be her way of manipulating the situation to her advantage, what do you think would happen in court?

Will the court give more weight to her primary caregiver argument as opposed to her action of leaving with the child without saying anything?

What would happen if I just pick-up the kid at daycare and keep the child with me? (don't really want to do this, but I'm just asking.)
  #2  
Old 07-24-2012, 10:17 PM
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wretchedotis wretchedotis is offline
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In the absence of a court order or binding agreement, custody of children is said to be 'joint'.

You however, just got the royal screw job out of it.

You could indeed goto daycare and take the child - and keep the child too. I imagine the police would show up at your door, but there's nothing they can do if the child is safe. That looks bad, though. Don't do that.

So basically, you're stuck with mediation. I'll suggest you dump it immediately and go to court.

Assuming you know what you want (Joint Custody), does it look like your ex will compromise to that end? Doubtfull. So essentially, all you are doing is delaying the time it takes to get a motion before a judge to even the acccess situation out, At the same time - she is racking up time towards the ever so mighty 'status quo' of her having the child full time over the next 6 months while mediation goes nowhere. Then you're screwed even more.

Once you start an application at court, and have attended the first case conference, you are able to file a motion over 50/50 access. Assuming you file your application tomorrow, expect first case conference in 3 months time.

You can actually continue in mediation while still filing an application. Good idea actually. Shows you as being reasonable and looking for solutions.

But do the followng immediately:

1) Find and retain a lawyer tomorrow. Get a fire lit under their ass to file an application in court.

Last edited by wretchedotis; 07-24-2012 at 10:20 PM.
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Old 07-24-2012, 10:44 PM
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File a motion to have the child returned to her habitual residence. Offer the ex the same arrangement she has offered you. Perhaps then she will start looking at more equal and reasonable offers.

In order for you to be more successful in having the child returned, the sooner you apply the better. The longer you wait the less chances the judge will rule that the child should be returned.
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Old 07-24-2012, 11:16 PM
Just&Fair Just&Fair is offline
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Quote:
Originally Posted by wretchedotis View Post
In the absence of a court order or binding agreement, custody of children is said to be 'joint'.

You could indeed goto daycare and take the child - and keep the child too. I imagine the police would show up at your door, but there's nothing they can do if the child is safe. That looks bad, though. Don't do that.
In regards to daycare, why would it be a problem that I pick up the child like I've always done?

Isn't there a risk of "implied consent", if I just suddenly never show-up at daycare, now that she has taken the child out of the home?
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Old 07-24-2012, 11:45 PM
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Rioe Rioe is offline
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Quote:
Originally Posted by Just&Fair View Post
I then get an message saying that because of the child's age (2 years old), it's too early for overnight stay and as the primary caregiver, she will not allow it.
KEEP THAT MESSAGE.

She is not the primary caregiver except by virtue of having stolen your child. Send her polite messages back saying you do not agree to her having the child more than 50% of the time, as you are both equal parents. Suggest a number of schedules for sharing the time with the child, and make sure every single one of them has you with at least 3 overnights per week. Don't hog the weekends though.

She'll either capitulate, which saves a lot of money and time in court, and you can work with her to figure out the best schedule for all concerned. Or she'll not answer or repeat her primary caregiver crap, which messages you also KEEP, and then you pick your favourite of the suggested schedules and send her a message about how you'll pick up the child on your next chosen day. Either the child will be available, in which case you do the drop off on schedule as you had indicated, or the child will be mysteriously absent. If the latter, you get a lawyer and file a motion to have equal time with the child ASAP as your ex is denying you access. Do not delay or let her delay though, as that creates the dreaded status quo.

Taking the child from daycare without notifying the ex first is kind of playing hardball. Informing her first makes you look reasonable, and certainly can't be accused of abduction. If she interferes by arranging for the child not to be at the daycare at the time in question, that is further proof of her unreasonableness. If this happens, make sure to get a letter from the daycare about what happened, so you can prove you were there and the child wasn't.

I know the child is the most important issue, but you may also want to say something about getting some furniture back too. Or did your ex only take the things she owned?
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Old 07-24-2012, 11:55 PM
Just&Fair Just&Fair is offline
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Quote:
Originally Posted by Rioe View Post
I know the child is the most important issue, but you may also want to say something about getting some furniture back too. Or did your ex only take the things she owned?
She only took what she owned for the most part.

I'm really, really trying hard to be reasonable, but nothing seems to work. She's the primary caregiver and it's all that matters. Her lawyer sent my lawyer a letter saying the same stuff.
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Old 07-25-2012, 06:31 AM
TLCRN TLCRN is offline
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Just&Fair: the Court system now leans towards "joint custody". You have nothing to loose by filing a motion and obtaining a Court Order. There is nothing the police can do or will do without a Custody Order.
If you have not reached an agreement re: custody with mediation, it is not likely you will, so do not delay and get that motion filed.
I have to ask: did she give you an explanation as to why she left? I know you say in your post that there was no violence, abuse but curious as to why she would leave so quickly without telling you.
Good Luck!
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Old 07-25-2012, 08:53 AM
Just&Fair Just&Fair is offline
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Quote:
Originally Posted by TLCRN View Post
I have to ask: did she give you an explanation as to why she left? I know you say in your post that there was no violence, abuse but curious as to why she would leave so quickly without telling you.
Good Luck!
The relationship was not working so well, so I'm not surprised that it ended. Communication issues for the most part. Again, not threat and no violence of any kind to anyone. However, I never thought that she would leave the way she did and not tell me where my kid was. We've talked about going our separate ways before and I've told her to just let me know what would be her plans. But leaving like this? I was blindsided!

The only logical explanation, in my opinion, is that since her plan was to leave without saying a word, she didn't want to risk an argument over leaving with the child. If she was not willing to confront me on this issue, she probably felt that I would give her some resistance in regards to leaving with the kid. Which reasonable parent wouldn't?

The Tulchinsky v. Shuster case is clear that this is "child abduction" and I know that a motion can be put forward. However, is parental arbitration a more reasonable course of action?

P.S. All of these questions will be addressed with my lawyer, if you are wondering. I just want some feedback from this forum.

Last edited by Just&Fair; 07-25-2012 at 08:57 AM. Reason: Add a sentence
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Old 07-25-2012, 09:49 AM
HammerDad HammerDad is offline
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How long have they been gone?

If it is only recently, have your lawyer file a motion to have the child returned to the matrimonial home.

And of course her lawyer will say that she is primary parent blah blah blah.....they are her advocate will say whatever promotes her position.

Start sending emails that you intend on exercising regularly scheduled OVERNIGHT access. As suggested, give multiple variations and allow her to choose one. State that unless she advises which one most suits her schedule by X date, you will choose A. Remind her that it is in the childs best interests to maintain regular and frequent contact with each parent to ensure a healthy relationship with each parent. And that it is both parents obligation to promote the childs relationship with the other parent.

Then document her replies.

If it matters, I was getting overnights with my daughter once she turned 2. I was also getting extended vacation time in the summer (a couple weeks). At 2 they can handle. Especially in your case as you lived with the child for both of those years. I never lived with my ex, and my daughter had NO problems at 2 for overnights.
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Old 07-25-2012, 10:30 AM
WorkingDAD WorkingDAD is offline
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and before you go to your lawyer read this
things-you-need-know-about-parenting-plans-children-under-3-years

print article and give it to your lawyer if he/she will try to convince you opposite. or may be find another one if you still shopping for one...

WD
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