Discussion of Perceptions of divorce and our children.

[Tayken]

Tayken

I usually agree with you but this time I am not so sure. When wife #2 wrote the phrase my...... stepson, you took offence to that.

I don't take offense. The person in question can objectify all they want and take possession in their statements. The observation is a point that a judge would make in response to any party (or witness) for which this person is relegated to in the matter (not a parent or party to the case BTW) would identify and often do.

It is her stepson legally. What is she suppose to say, my husbands kid?

Please do explain the "legality" of a "step parent" and what role they play in a matrimonial dispute on custody and access? Let us not forget that "wife#2" is a witness and not a party to the case.

She is not saying she is the mom but its showing the relationship between the two, her being his stepmom, him being her stepson. I really dont think she meant anything more by it though I could be wrong.

Step parents have very few if any "legal" rights over the children in question. They are expected to abide by the court order. They can't even sign a DNR and they have no say "legally" into the child's health, well being, education, etc... It is between the "parents" of the child in question.

Unless "wife#2" is a part to the litigation and identified as an in loco parent.

Good Luck!
Tayken

[Tayken]

I mean this to be as offensive as possible, what have you actually done in family law? What is your background? Have you ever had a high conflict ex? Ever actually been in a family court room? So judgemental yet you have never from what I can see posted anything about yourself. I am sure others would like to know something about your case.

How am I "judgmental"? Feel free to sight some specific examples and I would be more than happy to respond to them. A blanket statement, just like a false allegation, is very difficult to defend against. So, if you want to character assassinate someone feel free to but, do it with cogent and relevant evidence to the fact and not a blanket statement.

Furthermore, no offense taken. Based on past conversations, and your own cogent and relevant postings to the conflict you often seek out it is expected for you "to be as offensive as possible"... To quote you directly. It is what I have come to expect from any of your responses and you hold true to your statements and continued desire to seek conflict where no conflict needs to exist both on this forum and in possibly (as provided in your postings) your own custody and access dispute before the court. (Or the one you are planning as stated in other correspondence.)

Good Luck!
Tayken

[Tayken]

Yeah, we have to say "my" child a lot around here. It's not appropriate to use "my" over "our" when speaking to the ex, but when addressing third parties, such as the forum members, it's perfectly appropriate.

My position it is good practice even on this forum if people write in a style that they would be ok with a justice to read. It is just advice. People can take it or they can leave it.

Judges don't like "my child" and possessive statements in affidavit materials and in testimony before the court generally.

We go to our workplaces and tell our colleagues "You won't believe what my kid did last night!" and nobody is critical. There's no other alternative except to use the child's name, which is inadvisable here.

Just advice for those who share too much personal information about their situation that could be "docked" against them in court. There is already evidence on this forum that content from this site has been attached to an affidavit.

In this case, the child is the poster's stepson. It's a fact. She can't even say "our" stepson because that doesn't make any sense. So she says "my stepson," and it makes perfect sense.

Again, it is the statement combined with conflictual statements about the other parent that I am identifying. "My stepson scored three goals in soccer last game." - is not the issue. It is when it co-habitates with statements such as identified that a concern would be raised and a barrister would have a field day with the possessive nature of the statements being made. They are only a few words away from very histrionic and conflictual statements and assertions made by the person in question.

And just because the child is not her flesh and blood doesn't mean she doesn't love him and want the best for him.

When combined in a sentence with strong (possibly histrionic) statements including 'abuse' and other terminology stated above regarding the other parent... It does generate a lot of questions.

Good Luck!
Tayken

[Rioe]

My position it is good practice even on this forum if people write in a style that they would be ok with a justice to read. It is just advice. People can take it or they can leave it.

Judges don't like "my child" and possessive statements in affidavit materials and in testimony before the court generally.

But in court, the other parties are there, so it would be appropriate to say "our" child, or in this case, "their" child.

Otherwise, what do you suggest we say here? "The" child instead of "my" child? "My husband's son" instead of "my" stepson? That seems so impersonal and like you don't care about the child. Not to mention, just semantics.

[Tayken]

But in court, the other parties are there, so it would be appropriate to say "our" child, or in this case, "their" child.

Otherwise, what do you suggest we say here? "The" child instead of "my" child? "My husband's son" instead of "my" stepson? That seems so impersonal and like you don't care about the child. Not to mention, just semantics.

They can write any way they want. I only point out the issues for which if they wrote that way in an affidavit they would get called out on or gave testimony. Consider it "litigation training". It is always good practice in my opinion to use this site as more than a means to "vent" but, to structure an argument and position and ultimately test one's "theory of their case".

Hopefully, the person in question is not making similar statements to the OCL and using the same style of communications when talking about the children in question. It won't bold well for them potentially.

Good Luck!
Tayken

[Mess]

Unless "wife#2" is a part to the litigation and identified as an in loco parent.

In Loco Parentis originated in the 19th century to identify the rights of caregivers, often teachers and administrators in boarding schools, to control and discipline children in their care.

Currently the term is applied to describe situations where a step-parent may be financially responsible for a child after separation, but it is not limited to that.

The term may also be applied to situaions where a child is being cared for by a babysitter or a grandparent. A possible issue would be if a babysitter had to discipline a child in their care, or if a grandparent was letting a child stay up late and receiving complaints from a parent. There is a question of rights to decision making on the spot, and also civil liabilities after the fact.

In this case the term seems relevant. A step parent is caring for the child and will in some cases be making decisions such as when to go to bed, have supper, do homework, etc. In a high confict situation I can certainly imagine that a divorced parent would complain about how "their child" is being raised by a step parent. We often hear tales of this sort of conflict on the board here.

In Loco Parentis and the rights of a caregiver don't just depend on an after-the-fact analysis of a relationship during a divorce proceeding to determin if a step-parent has some financial obligation to continue supporting a child, although this the most prominent example in media and in recent court actions. It is also a principle that supports a step parent in their rights and responsibilities to a child currently in their care.

[Tayken]

In Loco Parentis originated in the 19th century to identify the rights of caregivers, often teachers and administrators in boarding schools, to control and discipline children in their care.

Currently the term is applied to describe situations where a step-parent may be financially responsible for a child after separation, but it is not limited to that.

The term may also be applied to situaions where a child is being cared for by a babysitter or a grandparent. A possible issue would be if a babysitter had to discipline a child in their care, or if a grandparent was letting a child stay up late and receiving complaints from a parent. There is a question of rights to decision making on the spot, and also civil liabilities after the fact.

In this case the term seems relevant. A step parent is caring for the child and will in some cases be making decisions such as when to go to bed, have supper, do homework, etc. In a high confict situation I can certainly imagine that a divorced parent would complain about how "their child" is being raised by a step parent. We often hear tales of this sort of conflict on the board here.

In Loco Parentis and the rights of a caregiver don't just depend on an after-the-fact analysis of a relationship during a divorce proceeding to determin if a step-parent has some financial obligation to continue supporting a child, although this the most prominent example in media and in recent court actions. It is also a principle that supports a step parent in their rights and responsibilities to a child currently in their care.

Where in jurisprudence has this been executed and supported by the court in any family law matter?

I can talk to the medical obligations a practitioner of medicine under the Medical Act has to take direction from a parent. This does not include a step parent's opinion and only that of the legal parents in conducting medical procedures.

Custody is rather well defined and it isn't about "bedtime". If one wants to establish themselves as a "parent" outside the bounds of a "natural" parents in law they have to be a party to the case.

A test of the theory would be for any "step parent" to go in and request that their "step child" be prescribed medication for say a learning disability. It would be malpractice under the law for the practitioner of medicine to take instruction from the "step parent" and prescribe without consent from the custodial parents.

In absence of the parents being present to emergency service of medicine it falls on the professionals in practice to make the appropriate decision. The step parent is relegated to providing information but, cannot make a custodial decision for which the "natural" parents can only provide under law.

In a situation of extreme emergency it would be the medical practitioner who, relying upon their medical training, and not the instruction from a "step parent" to do what is right for the child in question. They won't put their professional practice on the line for a step parent's decision.

Good Luck!
Tayken

[Mess]

It is certainly supported in 19th century cases that originated the concept. I doubt that there have been many recent issues brought to trial; that does not diminish the nature of the concept.

There are some more recent web pages written by lawyers explaining these concepts, I read them about 5 years ago when my ex and I began dealing with issues like new girlfriends possibly caring for the kids. There are all kinds of petty conflicts that arise.

[Mess]

The Wikipedia article sums up pretty much what I wrote.

In Loco Parentis

I think it would be pretty hard to argue against the idea that a step-parent would have a financial responsibility after separation, but no rights to actually raise the child during the relationship. The two concepts are interdependant.

Here is recent example of application of the concept. The notable point here is that the "step-parent" was seeking the result in order to continue being a parent after separation; it was not due to support issues.

[Tayken]

It is certainly supported in 19th century cases that originated the concept. I doubt that there have been many recent issues brought to trial; that does not diminsh the nature of the concept.

There are some more recent web pages written by lawyers explaining these concepts, I read them about 5 years ago when my ex and I began dealing with issues like new girlfriends possibly caring for the kids. There are all kinds of petty conflicts that arise.

Too many and that is why the court has two parties to the case generally. The natural parents. Now, there are even more complex situations in more modern families with mixed sexual orientation. The jurisprudence is incredibly mixed on these matters and really needs more to be done. The jurisprudence is horribly unbalanced in these matters and on the balance, the natural parent gets a custodial say when brought before the court.

The court is faced with a significant burden when a step parent gets involved as a witness. Now, bias is clearly observed in weighing the evidence that is for sure but, these "step parents" often do not understand their place in the family dynamic when it comes to what defines "custody" truly before the court.

Many are disappointed to realize that they have no "control" over the matter and that they are there to love the child but, they have no "legal rights" when it comes to decisions that fall under "custody". Well, they have a right to support their partner in the matter but, their voice isn't a doubling down against the other natural parent in the matter.

Two wrongs don't often make a right in family court. Just because your new partner is equally able and willing to hurl allegations doesn't make them "more true".

Good Luck!
Tayken

[Tayken]

The Wikipedia article sums up pretty much what I wrote.

In Loco Parentis

I think it would be pretty hard to argue against the idea that a step-parent would have a financial responsibility after separation, but no rights to actually raise the child during the relationship. The two concepts are interdependant.

Here is recent example of application of the concept. The notable point here is that the "step-parent" was seeking the result in order to continue being a parent after separation; it was not due to support issues.

The step parent would have to file an Application to the court for custody and access of the children in question though. Just like grandparents have to and we see how well that works out for grandparents quite often before the court.

If the person in question is a "parent" then they should be a party to the case and not just a witness though...

Just to point out... There is no mention of in the link provided to the concept of "step parent" at all... Nor the National Post article the article provided relies upon.

Also, the case is very different in the fact that the parent in question:

The judge said she accepted earlier findings of the court, by Justice Kristine Eidsvik, that both during the planning for conception and after the birth of the child S., there was an understanding that R. and H. would have the primary parenting responsibilities over S. and that D. would carry the baby for them in return for the opportunity to have and to raise baby N., also using assisted conception, along with her lesbian partner.

For example... Not sure how "case on point" this example really is to the discussion...

Here is the case law on the specific matter in the articles:

D.W.H. v. D.J.R., 2011 ABQB 608 (CanLII)
Date: 2011-10-12
Docket: FL01 11127
URL: http://canlii.ca/t/fnkmw
Citation: D.W.H. v. D.J.R., 2011 ABQB 608 (CanLII)

... and this is the case law for which the justice in the above case law relied upon:

D.W.H. v. D.J.R., 2009 ABQB 438 (CanLII)
Date: 2009-07-16
Docket: FL01 01406
URL: http://canlii.ca/t/24rm7
Citation: D.W.H. v. D.J.R., 2009 ABQB 438 (CanLII)

Good Luck!
Tayken

[Mess]

In the case I linked to it worked out well enough. A person is either acting as a parent or they are not; very often the grandparents, as much as they love their grandchildren, are overvaluing their roles. In the case of a step-parent the issue of day to day care and decisionmaking would be more obvious.

My point is that the role, the rights, and the responsibilities are in effect whether there has been a court challenge or not. A court result recognises existing situations, it does not create them on the spot out of fluff and vapour.

[Tayken]

In the case I linked to it worked out well enough. A person is either acting as a parent or they are not; very often the grandparents, as much as they love their grandchildren, are overvaluing their roles. In the case of a step-parent the issue of day to day care and decision making would be more obvious.

My point is that the role, the rights, and the responsibilities are in effect whether there has been a court challenge or not. A court result recognizes existing situations, it does not create them on the spot out of fluff and vapour.

Custody doesn't define "day to day care and decision making" though. It deals with specific incidents of medical decisions, schooling, etc... Furthermore, the case you cite worked out well as there was an existing agreement between all parties to define the parentage. (Justice outlines all the existing agreement prior to conceiving the child in question between all involved parties.)

Not sure, but I don't know any step-parent who enters a relationship with someone who already has kids who has established this agreement prior to the children in question's conception...

Step-parents are not involved in the conceiving of the child generally. So, there is little that can be drawn from the case law in my opinion that could be leveraged to establish a parent "after the fact" that they are a legal parent to the child in question.

I think we are in agreement? (possibly?) that just because you enter a relationship with a person does not make you a legal parent as a "step-parent" which is a parental role created "on the spot out of fluff and vapour". Furthermore, it is a relationship between only one parent and the step-parent in question. The other parent didn't get a say in this new "parent's" rights to dictate incidents of custody and access.

Assuming a parental role in "day to day" activities (and limited to when the child is residing with you and your partner) and "being a parent" are two very different concepts before the court.

Good Luck!
Tayken

PS: This is not to negate the importance that step-parents (or anyone who loves a child) has in their lives. But, often many can't see the boundary for which they exist as a "step-parent" in legal matters.

[OhMy]

Ohhhh this is all just yet another reason why I will never be wife #2, 3 or 4 Unless the "kids" are over 21, that is... Maybe.

On a lighter note: is it bad to buy a Nutcracker (as an Xmas gift) shaped like a Reindeer (it's ornamental too) for the ex?

As for above: Tayken is simply pointing out how the poster's observations may be construed, in my opinion.

I think your gift idea is wonderful.

[Tayken]

I think your gift idea is wonderful.

CanLII - Search all CanLII Databases

Nutcracker and divorce comes up 3 times on CanLII federally.

For some reason, angry people either destroy tickets to the nutcracker and or literally flush them down the toilet.

On one occasion, for example, he had torn up tickets for her to attend “Nutcracker” and flushed them down the toilet