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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 06-21-2007, 12:11 PM
About_Time About_Time is offline
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Default Separation Agreement - Round 2

I had posted awhile ago with my ex's concerns regarding the custody of our son. Basically, I am not the biological father but have been there since he was 10 months old and he is as yet unaware of this. She stalled me on adoption, so I was not able to legally adopt him. She has a full custody order for him and the biological father has had no real interest in being a part of his life - including paying child support.

So now my son is 10 and we have a daughter who is ours biologically. Initially she didn't want to give me joint custody in the separation agreement because she felt that, by giving up her full custody order, it would allow the biological father to sneak in and stake a claim which he otherwise could not. On some sound advice from LV, it was my understanding that he could challenge the full custody order regardless, and so sharing custody with me shouldn't be a problem.

Well, she went to a lawyer and that lawyer has told her quite a different story. She claims that:

1) She'd be crazy to give up a full custody order for joint custody, as it would allow the bio father to potentially gain access rights.

2) The kids will be appointed their own lawyers by the family court to represent their interests.

3) In going after the bio father for child support, my son will need to be told his true parentage because he will have to be present for court procedings in which it is discussed.

4) There is no joint custody per se, and that one of us needs to have essentially full custody with access and responsibilities spelled out in the separation agreement.

I personally think she simply wants full custody and is spinning me a yarn to convince me to just roll over and give her what she wants. She claims that if there is some way to give me joint custody without giving the bio father any advantages in a custody challenge, that she will do so. I plan on taking her revisions to the draft agreement we had made to a lawyer to get an opinion, but thought I'd ask the experts here as well.

My personal opinion is that if she refuses to give me joint custody, then she forces me to go for full custody - making the whole thing nasty and expensive. I've been trying to avoid this from Day One, but I'm thinking its the route I may need to take.
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Old 06-22-2007, 06:43 AM
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Quote:
Originally Posted by About_Time
1) She'd be crazy to give up a full custody order for joint custody, as it would allow the bio father to potentially gain access rights.
. If the biological father has had no involvement to date what's to say he will after the fact? I think you should go with your desire to seek joint custody as you have a valid claim for loco parentis (spelling??) That is a person in the position of parent in all aspects as if you were the biological parent. And with such all rights afforded a biological parent will be afforded to you as well.

Quote:
Originally Posted by About_Time
2) The kids will be appointed their own lawyers by the family court to represent their interests.
This is NOT automatic, nor is it granted upon request. We requested a lawyer on two separate occasions and did not succeed. The court tends to only grant a lawyer for the children when the issues become particularly complicated and/or the children have had a certain level of involvement outside the court for a while prior to the request. Meaning, in our case, the child was previously oblivious to the court proceedings when we made our initial two requests and were denied a lawyer for the child. But once it was established that the child, (by fault of the custodial parent) became involved both physically and emotionally, the court granted the request for a lawyer to represent her. Mom was required to file intake forms to initiate OCL involvement but for what ever reason did NOT file the paper work. So we are now back to court for that single reason as the OCL will not revisit the request without a court order. This time we will ask that we be responsible for the forms and initialization of the process.
So I see this as her and her lawyer's way to get you to side with their choice.

Quote:
Originally Posted by About_Time
4) There is no joint custody per se, and that one of us needs to have essentially full custody with access and responsibilities spelled out in the separation agreement.
Ahhh, but status quo iS in place and is viewed as an agreement of sorts.
So if you stay involved and maintain as much access and contact and responsibility in the care and maintenance then this will stand as a huge benefit in your request for a formal order to maintain the status quo joint custody arrangement. The onus however would be on you to prove the joint custody arrangements and show that you share equally in the care of and responsibilities for the children every day care.


Quote:
Originally Posted by About_Time
I personally think she simply wants full custody and is spinning me a yarn to convince me to just roll over and give her what she wants.

I agree.

Quote:
Originally Posted by About_Time
My personal opinion is that if she refuses to give me joint custody, then she forces me to go for full custody - making the whole thing nasty and expensive.
Personally I would not want to look vindictive in court by way of asking for full custody alone unless the children physically reside with you more than 50% of the time. Otherwise I would ask for joint custody, state the status quo if it represents an indirect agreement of joint custody, IE times and durations of time spent with each parent and extra curricular involvement. Then go on to explain how you would establish a regime for the children that would involve both parents, a parenting plan. Courts like parenting plans and they like to see parents act in the best interests of the children, and if you can demonstrate that this is what has happened and that you want it to continue to happen for the benefit of the children, I see a high probability of your success in getting granted joint over her sole custody.

Best of luck to you.
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