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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 04-06-2010, 04:51 PM
Underdog Underdog is offline
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Default Emergency motion for access

My wife has our daughter and lives 2 hours away from me, at her parents house. I went along with this arrangement because my daughter was breastfeeding... But now that my daughter is weaned off, I would like us to go to a shared parenting arrangement which was my understanding behind the mediation. My ex decided that she didn't want to do shared parenting - that ended mediation. (We were on a 2 visits per week for 4 months)

I just sent a settlement offer before bringing an emergency motion for access and 50/50 parenting to court because my ex is denying me access to my daughter.

The offer includes proposed solution for mobility, household assets and most of all a very detailed Parenting plan. My wife will hate it because the offer suggests bringing her back to my area as oppose to staying with her parents up north. However, the 50/50 offer is reasonable to anybody with common sense - which I hope the judges have that.

Two potential problems:

* In the last mediation session, the mediator noted that I'm not being cooperative, because I'm asking for a shared parenting within 6 weeks which she thought it was too soon, and she said that I didn't have a clear plan of how to achieve that 50/50 arrangement.

(I corrected that when I sent the above mentioned detailed offer 2 days after that mediation session.)

* I sent the offer and gave my ex and her lawyer one week to respond to it. (Because I can't wait for 2 or 3 months without visitation.)


What do you think of this situation ? Should I go ahead with the emergency motion for access or should I be doing something else ?
Any tips will be much appreciated
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Old 04-06-2010, 07:13 PM
digitalkreation digitalkreation is offline
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The advice I've received on emergency motions is that if the situation you're in at this moment has been ongoing for a while (status quo) then they won't hear an emergency motion, but place it in the standard queue for hearing.
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Old 04-06-2010, 07:31 PM
Underdog Underdog is offline
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Thanks Digitalkreation. I was told that too. But it takes 6 - 12 months to develop Status Quo, and it hasn't been that long.

Although we have been separated for 4 months (and was a 2 visits per week schedule until breastfeeding ended) - The breakdown in communications and cancellation of visitation just happened recently. The emergency motion is to at least restore visitation.

Another question - Does anybody know how soon can an emergency hearing be scheduled ? (They told me that they are booking for 8 months from now for normal hearings last time I was there.)
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Old 04-06-2010, 10:37 PM
singledad99 singledad99 is offline
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OK your case does not qualify for emergency motion because the child is not in immediate danger. You allowed the status quo to happen yourself. I agree with the mediator that you won't get 50/50 access so soon as it might disrupt the child's lifestyle drastically.

Now, you are saying that your ex is denying you access. Is she denying you any access altogether or the access that you want i.e. 50/50? If she is denying you the access altogether, then only you could argue that emergency hearing is justified because child that young could easily is at the risk of losing bond with her parent. I would suggest that you see a lawyer right away and discuss the same with them, if you don't already have a lawyer.
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Old 04-06-2010, 11:17 PM
Underdog Underdog is offline
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It's access all together... She stopped visitation completely.

Is a 4 month period enough to solidify a status quo ?

And how long will it take to gradually ease my daughter into a 50/50 schedule from 2 visits per week?
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Old 04-06-2010, 11:25 PM
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dadtotheend dadtotheend is offline
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If she objects, which it sounds like she does, and she lives far away, which she does, you are facing an uphill battle.

I would be running to court. I hope you haven't screwed yourself by allowing this to happen but I fear you may have.
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Old 04-06-2010, 11:35 PM
Underdog Underdog is offline
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Even if I argue in court: That my daughter was breastfeeding at the time and I couldn't stop my ex from leaving with my daughter because it would have not been physically possible for me to provide my daughter with that source of nutrition. But since she was weaned off recently, we don't have that limitation anymore ?
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Old 04-06-2010, 11:52 PM
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dadtotheend dadtotheend is offline
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You let her move away and yes a status quo may be seen to evolve in just four months. Your access has been scanty, and she sounds like she likes it that way. The deck is stacking against you.

You might have a hard time convincing a judge why she should be forced to move back months after she's settled in. Now the limitation is that your ex has settled.

If you draw a judge who's sympathetic to Mom you have given that judge an out in terms of backing her by not going to court on an emergency motion as soon as she moved.
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Old 04-07-2010, 12:16 AM
Underdog Underdog is offline
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Shit... My lawyer is a collaberative lawyer, believes in mediation. I should have hired a litigator... and its 2 visits per week not per month... I edited that just now in my previous posting.

Hmmm... I guess it's down to my luck and my ability to argue my case infront of the judge... Self rep'ing is out of the question then ? do I need a really good litigator and how much will s/he charge for bringing an emergancy motion do you guys have a rough idea?

5, 10 or 20 hrs ?
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