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  • Legalizing custody without going to court

    My ex and I have always made our own agreements, and have never been to court. We use the federal child support table to calculate child support and made our own custody agreement...well the kids have always just been with me, and we agreed on when he will take them, etc.

    With some things however it is a bit of a pain not to have any legal documents to show (such as medical access, permission forms, etc), so I am wondering if it is possible to legalize our agreement without having to go to court. I know my ex will not have a problem with "granting" me the decision-making power because that is how it's been all along, and I always try to keep him in the loop and ask his opinions on certain things.

    Can we write up our agreement and take it to a notary public or commissioner of oathes? We live in Alberta.

    Thanks

  • #2
    You can draft and sign an application for a consent order, then submit it to a family court judge to be endorsed, thus creating a consent order. Would strongly suggest you each obtain independent legal advice, to reduce the chances that it can be challenged a few years down the road.

    See here for more info for procedure under Divorce Act (i.e. if you were actually married)
    http://www.albertacourts.ab.ca/familylaw/booklet8.htm
    Last edited by dinkyface; 08-06-2010, 10:58 PM.

    Comment


    • #3
      We weren't married.

      I guess I am a bit worried that it might open a "can of worms" so-to-speak with him.

      We broke up a couple of times for extended periods, but the last time was when our son was about a month old. The kids (ages 11, 10 and 6), have never lived with him, and in the past 2 years have not even spent a night at his house due to a child welfare investigation (my daughter was having severe anxiety going to her dad's because his parenting style is very intimidating and full of threats). So, with the support of the investigator, his visitations are at my discretion, because if anything ever does happen, I can be responsible for sending them there, knowing the situation.

      All he was asked to do to get his weekends back with the kids was take a parenting class. It has been almost 2 years, and he still hasn't taken one. We live in Calgary, and there are plenty of family support services here so I can't understand why he hasn't done it yet...

      Because it isn't a court ordered request, he could possibly take me to court to apply for more time with the kids, but child welfare has weight and they would probably just reiterate the need for a parenting class, and I'm assuming they might question why he hasn't done so. Besides, something like that would probably take too much effort on his part...

      Anyway...he seems to be content with the few hours a week he sometimes gets with them. He never calls them, never calls me to ask about their schooling, health, etc. He acts like they are "number one" when they are there, which is great, but the rest of the time he lives like a bachelor who has no kids to tie him down. While we are still on friendly terms, I have lost a lot of respect for him the last few years. I still inform him of any major issues with the kids, like trips to the emergency room, etc. But he never asks about follow-up information.
      All three of our kids have [different] neurological conditions that he has failed to learn anything about and just goes along everything I decide. I do ask for his thoughts and opinions, but, he has no opinion on anything he just agrees with whatever I say...and no, it isn't because he can't disagree with me, I am not the kind of person who has to hear support or I flip out... he just doesn't know about these things and rather than researching and learning, he just agrees. In a sense it is good that he obviously trusts my judgement, but I wonder sometimes if he even cares...

      This weekend, as an example, he hasn't even called to see if he was going to see our son (our daughters are visiting his mother in the US). I've asked him many times in the last 2 years to call by Thursday to make arrangements for the weekend, which he does a few times and then it fades and eventually he is calling me up Saturday morning asking if he can see the kids...when we've already made plans. More often than not, I change our plans and the kids are not impressed with my decision. Lately, I have been telling him sorry, we have plans. Then there are the weekends that he doesn't call at all.

      So, by definition, I have informally had "sole custody" for the last 6-12 years with our kids. All I want is to make it formal because I'm tired of having to get his signature for things that he doesn't otherwise seem interested in.

      I read somewhere about "involve and consult" custody, and that might also fit, but is that an actual legal option?

      If this has been our amicable arrangement for so long, will the courts acknowledge this? Or will they try and force us into a joint custody arrangement? I feel at this point that it would be detrimental to psychological well-being to enforce more time with him than he is willing to give, and have plenty of examples to back that up.

      But, he is a charmer and often convinces people that he is more involved than he is, and that he truly acts in a way that puts the kids first...and it simply isn't true. Should have seen him run in circles in one of my daughter's counseling sessions where he had obviously told them that he was involved on a regular basis, and when I confronted him, he squirmed and stammered saying "well, what I meant was...". The counselor was really confused...

      I am worried that the judge will think I am "one of those" women, who doesn't want their ex involved at all, but the opposite has always been true, and I have always left the proverbial door open for him to see the kids, etc. Now all I want is to solidify what we already have...for the sake of making decisions without him a bit easier.

      Comment


      • #4
        Sounds like the first thing you need to do is sit down and discuss it with him. Possibly he'd be OK with not being bothered with requests for signatures. Just presenting him with some legal forms and asking him to check off the 'I agree to everything she wants' box is asking for trouble.

        Comment


        • #5
          Of course I would have to discuss it with him and of course it would be more than just ticking off a box, he is not stupid and would never just "sign" something so formal regarding the kids without understanding it.
          Just so it is clear, this is not anything to do with what I want, just because I am the one looking up information about this. I'm not proposing that I would be doing this myself and then asking him to sign on the dotted line. Sheesh. We haven't gone over 11 years of making these agreements and discussing things civilly by duping each other into making decisions like this.

          The reason that court scares me a bit is because I worry that they will suggest that we start a joint custody arrangement. He has never once asked me about joint custody or acted like he was a joint parent. Maybe a little at the beginning of our separation, but that has faded quite a bit like I said. It would be forcing him into something that he is not really capable of handling any longer than he is at the moment. For whatever reason, some of which I know but are very personal and not anyone's business, the kids are not his priority right now and having joint custody would not be in their best interest...

          I don't want to have to "proove" that he isn't in a place to have joint custody, as this far I have kept my opinions and thoughts on his lifestyle (no, he's not gay) to myself. I worry that it would start the mud-slinging.

          The convenience factor is not just for me either. It is just as inconvenient for him when he is working out of town to have to fax forms back and forth, especially when some of these are time-sensitive and he is in a meeting, etc...I know he trusts me to make major decisions for the kids, so that is not an issue. Like I said, looking to legalize what has already been our arrangement for years. I have been making all major decisions regarding the kids for many reasons.

          It is about making what has been for a number of years legal and to more conveniently "proove" our verbal/informal agreement when I am asked by people working with my kids or whomever else it may concern. Or saving the expense of paying for notarized letters every time I take them on a trip or send them to visit his mother in the US. It would be nice to have an official agreement that says we are both free to travel with the kids, etc.

          So it comes back to my original question...Can two consenting adults legalize their 11 year old verbal/informal custody agreement without going to court? Yes? No?

          Comment


          • #6
            How long was/is your verbal agreement in effect? Is it 11 years.

            I find it confusing since your youngest child is 6. Are they the biological parent of all three children?

            Comment


            • #7
              I'm not sure you can, even if you both consent and put it into writing. Without a court order, if the need ever arose, the police would have no recourse to step in and enforce the order. Involve and consult agreements aren't made through the courts, just between the parents according to some web research but it seems the only place info can be found about this is for Alberta.

              At the very least I would expect you would each need to have independent legal council before even being able to file such an order with the courts. You could simply file on your own for sole custody and let him object if he chooses to.

              Just out of curiosity, and perhaps it's different in Alberta than Ontario, why the need for so much paperwork with dual signatures? Do you require that for all your medical visits and field trips etc? Here they never ask for more than one signature and aside from trips to the hospital neither of us has even been asked about custody arrangements or who can sign on behlaf of the kids.

              Comment


              • #8
                LV,

                I know it is confusing, that's because the relationship was confusing P

                It is the same father for all three kids.
                We were living common law, but we broke up and he moved out when our first daughter was 6 months old. He moved back in when our second daughter was 6 months old. He moved out again when she was about 18 months old. He didn't live with us again until we decided to give it one more try and then he left when our son was a month old. Basically every time I mentioned wanting to get married he ran away (talk about cold feet! lol)

                Every time he left we basically continued the same agreement, that the kids would live with me, and he would have visitation (every other weekend, one week during the summer, and shared holidays, etc). Our son is now 6 1/2 and our arrangements have been the same until the last 2 years where he has become less and less involved. Our door is always open, and the phone is always on, yet he has distanced himself from the kids, I believe because of the marriage to my husband, but that is purely speculatory...

                blink, there aren't too many every day issues, but my daughter is in therapy and recently underwent an evaluation. I am anticipating the same thing for my other two kids as well. These people could get in trouble if they don't have permission from authoritive parents. It seems to be the specialists require this more.
                I am also involved voluntarily with various family services, so sometimes they deal with a lot of heavy-duty conflicts and custody battles and need a court order showing custody, or a signature from the other parent in order to provide services.

                Also with the traveling, we both have relatives in the US, so getting these notarized letters of permission to travel adds up. We both take them across the border and have no concerns over the other abducting the kids, etc but it would be nice to take a spontaneous trip on a weekend without running around trying to find an available notary to get another letter, you know? Not to mention when my ex is working out of town, I can't do this at all.

                I also want to make a will and in it appoint a temporary guardian, and suggest a permanent guardian and feel that it may be taken more seriously if I have proof of being the custodial parent.

                ...

                I won't lie. I do have an alterior motive. Well, it is perhaps more of a side effect that I'm hoping for than an alterior motive really...

                The other thing that I am *secretly* hoping, is that taking a step like this will motivate him to take the parenting class. We had a heart to heart a while back and I told him I really wanted him to get back on track and get the class done so things can get back to 'normal', with the kids going to his house on a regular basis. He seemed to be on board and told me that he understood where I was coming from.
                But he still hasn't done anything about it. This weekend has past and he never even asked to see our son. Weekends like that are becoming more and more frequent.
                Perhaps, if he is scared that this could be a legally permanent situation, it might light a fire under his a$$ to get this class done! I can't send them for regular visits or overnights until he takes it. My kids love their step-dad and think of him as a father, no doubt, so at least they have someone acting as a dad and a male role model...
                But they are getting older too (especially my second daughter) and miss their bio-dad and don't understand why he hasn't fixed this situation so he can see them more...and I can't keep them from forming a negative opinion although I do try to get them to understand that it is a hard time for him right now, but at the same time, I'm getting weary from making excuses...I just want my kids to know that he loves them and right now, they don't really know...
                This is another reason why I'm not sure going to court would be a good idea if it can be helped. I don't really want it turning into a big ordeal if the judge doesn't understand or agree with our situation and agreements.

                I'm not the kind of person who would EVER say "well you signed it, now you only get to see them this much..."....no. Not me. I want them to have a better relationship with their dad and genuinely hope it improves in the very near future.

                Any thoughts/suggestions...? Is there another way to go about all this??

                Comment


                • #9
                  Totally understand now. A couple of points, this...


                  I also want to make a will and in it appoint a temporary guardian, and suggest a permanent guardian and feel that it may be taken more seriously if I have proof of being the custodial parent.
                  ....wouldn't override the rights of a biological parent. You can't 'give away' someone else's child, if that makes sense. One parent having custody doesn't diminish the others' parental rights and responsibilities, especially if something happens to the other parent.

                  Unfortunately, you can't force him to actually go through with the parenting classes or be present and relevant in his children's lives. If he won't go to the classes, perhaps you could visit a parenting councelor and see if they can offer any suggestions on how to engage him with the children? Depending how 'close' you are, perhaps you might consider attending a parenting class with him that would encourage him to go?

                  Comment


                  • #10
                    I'm so sorry. It sounds like your intentions are good. I hope he comes around.

                    I think it might be best to file for custody, then make him an offer outlining exactly what you have been doing already, but having him give you authority for medical and other health decisions. That way you can sign up for counselling etc but he wouldn't lose custody for other issues like education, religion etc.

                    If you can get him to agree to your offer you can then both attend your first meeting at the court and ask for a consent order. I'm not sure of all the logistics, but I can't see a judge not endorsing something that you both agree on and works for your families.

                    Comment


                    • #11
                      Originally posted by blinkandimgone View Post
                      Totally understand now. A couple of points, this...



                      ....wouldn't override the rights of a biological parent. You can't 'give away' someone else's child, if that makes sense. One parent having custody doesn't diminish the others' parental rights and responsibilities, especially if something happens to the other parent.

                      Unfortunately, you can't force him to actually go through with the parenting classes or be present and relevant in his children's lives. If he won't go to the classes, perhaps you could visit a parenting councelor and see if they can offer any suggestions on how to engage him with the children? Depending how 'close' you are, perhaps you might consider attending a parenting class with him that would encourage him to go?
                      Anyone can seek legal custody of a child though. Grandparents, you, me. If were you or me, we'd have a snowball's chance of winning custody of her kids, but the grandparents, for example, would.

                      Comment


                      • #12
                        Yes, just meant that if she 'willed' her children to a specific person it wouldn't mean they would automatically go to that person rather than the bio dad. He doesn't cease to exist as father because she's given sole custody. If she willed her kids to someone and the father wanted them, unless there were some very serious reasons proven that he should not have them, they would most likely go to Dad, would they not?

                        Comment


                        • #13
                          Also with the traveling, we both have relatives in the US, so getting these notarized letters of permission to travel adds up
                          Regardless of whether you have sole custody or not, you still need this for cross border travel. Within Canada, no...outside...yes.

                          Comment


                          • #14
                            Have a look at the online forms for applying for a consent order. There is one for the applicant, and one for the respondent. Everything is spelled out there, you could print these out and use them as a basis for your discussion, and even possibly fill them in together. My impression is that when you bring these to court, the judge just asks some questions to ensure that you are really both in agreement and have full understanding, and that's it.

                            BUT...probably still you'd want to each bring the completed forms to your own lawyer for a review. Not sure if using a shared mediator would be good enough, but maybe that's a possibility.

                            Comment


                            • #15
                              Originally posted by blinkandimgone View Post
                              ....wouldn't override the rights of a biological parent. You can't 'give away' someone else's child, if that makes sense. One parent having custody doesn't diminish the others' parental rights and responsibilities, especially if something happens to the other parent.

                              Unfortunately, you can't force him to actually go through with the parenting classes or be present and relevant in his children's lives. If he won't go to the classes, perhaps you could visit a parenting councelor and see if they can offer any suggestions on how to engage him with the children? Depending how 'close' you are, perhaps you might consider attending a parenting class with him that would encourage him to go?

                              ...Yes, just meant that if she 'willed' her children to a specific person it wouldn't mean they would automatically go to that person rather than the bio dad. He doesn't cease to exist as father because she's given sole custody. If she willed her kids to someone and the father wanted them, unless there were some very serious reasons proven that he should not have them, they would most likely go to Dad, would they not?
                              Not necessarily. There may be a strong presumption, but the best interests of the children includes stability and continuity. Taking them from their home and putting them in a home that is not even remotely close to being suitable for children, with someone who has barely put forth an effort to exercise his "right" to parent and maintain a solid relationship with them could be considered detrimental to their psychological well-being.
                              This is all assuming that things are not going to change from how they are now... and to be honest, I'm not even sure my ex would contest such a decision. He was at our wedding and has full knowledge of the relationship the kids and my husband have built and as far as I know he supports it 100%, even when they decided to call my husband "Dad". (well, ok. that one took some getting used to but in the end he swallowed his pride and agreed that it was suitable).

                              But, you're right...I can't directly "will" them to someone but I can appoint a temporary guardian until custody is established I believe.
                              Since my husband will presumably have legal guardianship by then, I will appoint him as that guardian. And then, it shouldn't be too far fetched to believe he has a chance on becoming the custodial guardian.

                              However...even if my ex ended up with the kids, as a guardian my husband then has a legal right to remain involved in their lives and can then apply for a Parenting Order or Contact Order to ensure he has a fair amount of time with them if needed. The point is, at the very least, to protect the relationship the kids have with their step-dad in the event that I croak so they are not just "taken away" from their home and from someone who's been there for them every day for the last 4 years.

                              On the parenting class, I have offered to go with him. I also asked my husband to also take one when we were dating (I had already taken a few) and even he had a conversation with my ex where they were going to go together! My husband went...but my ex always had loads of excuses. And my daughter's counselor tried to involve him in some things, and he mentioned that he was just about to get into a class, which may have fooled the counselor, but he's been saying that for 2 years...
                              I could talk to someone about how to engage him, but frankly...I'm tired of trying to get him engaged. I'm feeling like this is his responsibility to figure out how to be a dad.

                              Originally posted by Mess View Post
                              Anyone can seek legal custody of a child though. Grandparents, you, me. If were you or me, we'd have a snowball's chance of winning custody of her kids, but the grandparents, for example, would.
                              From what I understand, the person applying for custody usually has to be a legal guardian and have cared for the child for a minimum of 6 months already (at least in Alberta...). Of course there are exceptions at the discretion of the court, but can't remember where I read that or if it is correct...?


                              Originally posted by NBDad View Post
                              Regardless of whether you have sole custody or not, you still need this for cross border travel. Within Canada, no...outside...yes.
                              Hmmm...darn. I was hoping for this to at least be "easy"... P yeah right... haha

                              It does look like I'd just have to officially file for custody. Hopefully we can do that at the same time as my husband applying for guardianship so we can kill two birds with one stone...
                              I'll have a chat with my ex and see if we're for sure on the same page so neither of us end up with any nasty surprises...

                              Thanks for all the responses! It's been a really good sounding board on all of this.

                              Comment

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