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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 03-21-2011, 02:17 PM
Motorizer Motorizer is offline
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Default Guardianship questions...

Hey everybody.

I applied for guardianship of my son in January, as me and BM were not together when our child was born.

Originally, it was supposed to be by consent.
Now, BM has changed her mind, and has asked that all decisions be left to her... Sole legal custody, in essence. I have stated that I wish for shared custody.
We are in mediation to get a PP going, though her refusal to compromise leaves me thinking that filing for a PP may be the only thing to do.
Her explanation for this is that she wants the child to live with her exclusively.
I disagree, as I think we should both be party to all major decisions.

I have had two overnights a week, with a informal agreement to expand this to three by the time our son is two years old.
Child is currently 9 months old.

We have a case conference set up for next week, and I will have to self rep, due to financial reasons.
So... I'm just wondering, how should I go about this?
I have been an active and involved parent since birth, and have e wrt intention of continuing.
I believe that both parents should agree on all major decisions, but am very nervous about how to do this.
Any help would be appreciated.

Thanks.
  #2  
Old 03-21-2011, 02:46 PM
dinkyface dinkyface is offline
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In one corner, arguing for sole custody, is a demonstrated lack of cooperation between the parents on child-issues.

In the other corner, arguing for joint custody, is the danger that the parent asking for sole custody will abuse it in order to cut the other parent out of the childs life.

So... how do these 2 balance out in your case?

Did she REALLY say the child should live with her exclusively, even when you currently have 2 overnights? (what did she mean - no overnights? no access at all?). If she said clearly no access at all, she's just screwed herself. Do you have it in email?

Stepping back.. are you agreeable to sole custody to her with 50% access? Or sole custody to her with 35% access? (aka 'the screwjob'). Or is it truly the decision making that is important to you i.e. joint custody.

There are a few recent threads here on this very topic.

Last edited by dinkyface; 03-21-2011 at 02:58 PM.
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Old 03-21-2011, 07:04 PM
Motorizer Motorizer is offline
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Sorry, I guess I should rephrase that.
BM meant that since the child will be living primarily with her(Which I am opposed to), that she should make all decisions, without regard to what I think.

The funny thing is, we get along great.
Talk/ text daily, co-ordinate diet, babysitting and daycare, and help each other out with general baby stuff.

I have him two days a week, and plan to increase it to 50-50 soon.
Hopefully.
I'm just wondering what to expect at said conference, if I should bite the bullet and get a lawyer, and what kind of rebuttals to make to her position.
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Old 03-21-2011, 09:49 PM
dinkyface dinkyface is offline
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Can you make any guesses at why the change of heart? Perhaps she does not feel that there is as much cooperation as you do. Is it possible that she is being outwardly acquiescent to you in discussions/decisions, but internally feeling she is being dominated? Sorry if that is off the mark, but I'm just trying to come up with something. Why did you split - any clues there? Knowing why may help you defend. Your history of cooperation is VERY useful to your case ... you *might* find that she suddenly becomes a whole lot less cooperative when she realises this (my ex became suddenly very uncommunicative when a professional observer testified that exchanges were going very smoothly and civilly in spite of her affidavits describing me as a monster).

Possibly you can acknowledge her change of heart, and ask to hear what specific concerns she has, so that you can address them. i.e. show you are willing to listen and work things out. If she cannot come up with anything, then you are good! Or if she comes up with some garbage, you are good! Think hard on what possible answers she might come up with. Possibly ask a good friend for some honest observations on your relationship - you cannot have an objective view yourself.

Of course the standard reasons are
- it's a whole lot easier for her if she has sole custody (she can just do whatever she wants)
- she gets a whole lot more money from you if you have <40% time
Neither of these reasons is relevant to best interests of the child.
But maybe she just wised up to these realities of joint/shared custody.

Above all, protect your history of reasonabless and cooperation.

Keep negotiating with the attitude that UNLESS THERE ARE REASONS OTHERWISE, the child's contact with both parents should be maximized i.e. don't start giving reasons why your access should be increased - ask them why it should NOT be increased. The 2/7 status quo is her greatest strength right now, so if you indicate how happy your kid is right now, she'll argue 'why change something that's working'. I know ... all good in theory .

Last edited by dinkyface; 03-21-2011 at 10:49 PM.
  #5  
Old 03-23-2011, 02:24 PM
Motorizer Motorizer is offline
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Okay, then.

Mediation yesterday was a shitshow.
I indicated that I would like joint guardianship, including education, medical and residential issues.
BM refused, saying that as I am "Only" the father, and the child resides 5 days a week with her for now, that I should not get any decision making powers.
I, understandably, feel that both parents should make these decisions.

I also reiterated my desire for shared custody, as our son seems to be taking quite well to our 2/5 arrangement, and feel that within a year or so, shared custody is feasible.

I stated my case in businesslike terms, always staying child centered.
BM said no way, she wants sole custody and that I would only receive EOW and that's it.
Also threatened to cut me out of all forthcoming medical appointments, etc.

I also asked that Section 7 expenses be shared proportionately, but with an imputed income for her, as she does not work more than 8 hours a week by choice.
I also asked that all Section 7 expenses be discussed beforehand.
Such as jointly agreeing upon daycares/sitters, and extracurricular activities.
Daycare, I have no problem with.

I asked that any activities be jointly agreed upon, and that neither parent would schedule activities for the child while with the other parent.
Also, that all activities would be jointly agreed upon, or the registering(?) parent be responsible for the cost of said activities.

BM said no, it's entirely within her discretion, and that I would receive a bill regardless of whether I had agreed or not.

I reiterated my stance for all of the above, and the mediator asked that she consider my views as a parent.
BM stormed out, swearing at both of us, saying she doesn't have to listen to either of us, and that she'd see me in court.
Yet, we communicate daily about our child, and are both seemingly commuted to raising him together.

Anyways, I have a docket hearing for guardianship next week, and have an affidavit to fill out.
What shall I put in this affadavit?
I am currently without legal representation, but am meeting with a couple this week.
Also... In light of our co-operation on day to day issues, does this bode well for my case?
Is there anything else I should be doing?
Sounds like court is the only option I have left.
  #6  
Old 03-23-2011, 02:38 PM
She took the kids She took the kids is offline
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I'm sorry to say that court is your only choice. Get a lawyer (although that may be of little help). Remember that you have to prove that your are a great thing to have in your child's life. Being a male you are already at a disadvantage (don't shoot the messenger). Stand up for your child's rights to have you included in their life. Put together a parenting plan that includes the mother having access. In my experience (how little that is) all extra curricular monies within reason should be a shared cost. Having said that all should be discussed before hand by email to have a paper trail. Best of Luck.
  #7  
Old 03-23-2011, 03:54 PM
dinkyface dinkyface is offline
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Right now, gather as much evidence as you can of your cooperation history, and of your active involvement as a parent. Get affidavits from doctors, friends/parents, caregivers/teachers, crossing guards, librarians, pool lifeguards etc.

The same goes for evidence where she has been unreasonable.

Perhaps you could concede your request to preapprove section 7 expenses if they are below a certain $ threshold (but still require receipts and advance notice of bills). And in general, look for places where each parent can make their own decisions - this will make both of your lives easier by giving you some breathing room. And it will make it harder for her to claim that you are controlling and overbearing.

Do you have another appointment for mediation? (perhaps she will return to the table after some reflection)

Herre's some reading on landmark cases regarding the joint vs sole custody battle. It's a good primer on the main issues and arguing points.

http://www.divorcemag.com/articles/Parenting_and_Step-Families/parallelparenting.html

Background on Kaplanis and other related cases:
http://www.nathenssiegel.com/article-kaplanis.pdf

Last edited by dinkyface; 03-23-2011 at 04:10 PM.
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