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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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Old 04-29-2011, 05:18 PM
fozzie fozzie is offline
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Default living arrangement for kids

This forum has been very helpful and informative over the past 10 months. Please advise on my situation:

My common-law husb and I separated in June 2010. He moved into a house with new girlfriend in a small town 65 km away from us.
We have 2 kids - one is 16 the other 8. I have stayed in the house we were in, the kids have gone to the same schools, etc.

Since about Oct, ex has taken the 8 yr old every second weekend. the 16 yr old chooses to stay with me most weekends so he can hang out with his friends. Ex is ok with that.

I asked my lawyer to do up a sep agreement. It says that I will have daily care and control of the kids and ex will have reasonable and generous access.

Ex doesn't want to sign this agreement. He thinks that signing it will lower his chances to have 8 yr old live with him primarily in the future. He wants instead to have a general statement such as: "'we will agree between ourselves where the 8 yr old will live. Whoever has the kid(s) most of the time will be paid Child support according to the guidelines. We can change the agreement at anytime if we both agree and it is in the best interest of the kid(s)."

This statement is too vague for my comfort. I told him I want it to say that at least for the coming school year (sept 2011 to June 2012), the 8yrold stays with me M-F to keep him at the same school for the duration of the school year.

Ex will get his own place this summer (after the financial settlement is done) and will try to move closer to Edmonton but refuses to live in town. He has said several times that he won't put his sons' needs before his own.

He says that once he gets a place (in the country) and arrangements so our son doesn't have to spend too many hours alone every day (ex works 10 hr days), he wants him to live there primarily. He wants this to start as early as this Christmas. Our son would have to change school, neighbourhood, he would see extended family and his brother less. Now his brother is home every day when he gets home, I'm home soon after (I work Part time), Grandma is 10 mins drive away, there are neighbours and extended family in Edm who are involved.

Ex thinks that moving the kid to a new school in the middle of the year (or any other time) is no big deal. I say it is.

I don't think he has a chance of moving our son in with him now. The change has to be good for our son. I don't have a problem with ex's parenting; I just don't think the kid needs any more changes now. I think when our son is older he can have a say re where he lives.

I think Ex could put aside his own need to live out of town for a few years and move into Edmonton where we could live close to each other. that would be best for both kids.

From what I read on this forum, it would be better for him agree to 50-50 (approx). That
way it will be easier for him to get primary residence later on - when it's good for the kid.

He has to move from the house he's in within 2 months, and he needs the financial settlement done first so he's feeling pressured to get this agreement done.

He hasn't talked to a lawyer yet. do you think that when he does, the lawyer will let him know he's unlikely to get primary residence now?

Thanks.
  #2  
Old 04-30-2011, 11:40 AM
Pink Pink is offline
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At 16 your oldest son can decide where he wants to live and there isn't a whole lot anyone can do about it.
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Old 04-30-2011, 04:17 PM
fozzie fozzie is offline
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Thank you, Pink and iceberg for your helpful replys.

BTW, iceberg, what does "BIC" mean?

Thanks.
  #4  
Old 04-30-2011, 04:30 PM
dinkyface dinkyface is offline
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Quote:
Originally Posted by iceberg View Post
NCP pays child support.
Not true. If you are NCP with more than 40% access, and you earn less than CP, then CP pays NCP. That's according to the guidelines.
  #5  
Old 05-03-2011, 12:04 PM
fozzie fozzie is offline
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Default wording of custody and access in sep agreement

Thanks to those of you who have replied to my questions.

I have a couple more questions re custody and access.

We have 2 kids (8 and 16 yrs old).

The sep agreement my lawyer wrote says that I will have daily care and control of the kids and ex will have reasonable and generous access and that we both must agree to change this agreement. (the kids have been with me since he left and moved out of town 10 mos ago)

Ex wants instead to have a general statement such as: "'we will agree between ourselves the current and future residence of the 8 yr old. Child support will be paid according to the guidelines. We can change the agreement at anytime if we both agree and it is in the best interest of the kid(s)."

The 16 yr old can decide for himself where he wants to live.

does it matter if the living arrangements are specified or not, if we both have to agree to change them?

Ex wants our 8 yrold to live with him out of town when he's got a place and he's ready (he thinks as soon as Dec of this year!) I think it's best for the kid to stay at the same school, same neighbourhood, close to extended family, etc for a few years. Ex refuses to move into town.

I have no problem with ex's parenting. I just don't think the changes will be good for our son now. when he's older (age 11 or 12?) and can understand what the changes would be and is prepared to make them, I would be okay with him moving out of town to live with his Dad primarily. Right now our son is going to a K-12 Arts school. he's had some difficulty in school this year probably make worse by the changes he's already had to deal with.

thanks for your input.
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Old 05-03-2011, 03:35 PM
dinkyface dinkyface is offline
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An agreement that states "will agree between ourselves the current ... residence of the 8 yr old" is completely useless.

We agree that we will agree on something? What?
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Old 05-03-2011, 03:40 PM
fozzie fozzie is offline
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Default wording of custody and access in sep agreement

Thanks for your input, dinkyface. I'm not comfortable with the vague statement, either.
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Old 05-03-2011, 04:40 PM
HammerDad HammerDad is offline
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I would never sign anything that was so vague as to provide "reasonable and generous access"...to vague, and leaves interpretation between two people who obviously aren't getting along (or they would be staying together).

This sort of wording BREEDS issues as who determines what is "reasonable" or "generous". I am sure your interpretation is different then his. A specified parenting time schedule is A MUCH better solution then vague wording of "reasonable and generous". Personally, I am surprised lawyers still use this wording...I mean, they should have enough experience nowadays to realize they aren't doing their clients any favours giving them vague clauses open to interpretation, which both parents will interpret differently.

With regard to the 8y/o, that is tough. They have expressed their desire to live with Dad, but the reality is, they are not old enough to understand the ramifications for their decision or make informed decisions on their own. Generally the kids don't get a say until they are 12, and even then it is dependant on a judge agreeing with their reasoning.

Personally, both your lawyers and your ex's clauses are terrible. Neither will create any consistancy and will only cause each of you to have to interact more then either of you really want to, and you'd have a dagger hanging over your head with your 8y/o and be affraid to properly parent them, should they all the sudden get pissed and say "I want to live with dad", and you've signed a piece of paper agreeing to it....

Unfortunately, outside of tighten up the wording, I have no real recommendations on how to proceed. And I will say that, trying to tighten up the wording, will only upset the ex more, as he won't like the idea of the child not being able to choose.
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Old 05-03-2011, 05:42 PM
fozzie fozzie is offline
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Smile wording of custody and access in sep agreement

I'm beginning to realize that a clearly defined schedule is better than a loosy-goosy one no matter how well the parents get along. That way everyone knows what the schedule is. Some flexibility can be allowed of course, for birthdays, special occasions, etc.

BTW, our 8 yr old has not expressed an interest in living primarily with Dad. He goes every other weekend and seems fine with this. I think he's too young to participate in a decision re where he spends most of his time. I wouldn't want him to think he has to choose between us.

I will put a schedule in the agreement and not worry about what Ex has to say. I think it's in the best interest of our son.
  #10  
Old 05-03-2011, 09:40 PM
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Rioe Rioe is offline
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How well parents get along right now is something that is subject to change later on in the future. Tell your ex that it's there to protect you both later on, in the worst case scenario.
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