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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 10-12-2010, 09:24 AM
ConcernenedStepMom78 ConcernenedStepMom78 is offline
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Default Mobility Rights v. Custody and Access

While the Supreme Courts have made a ruling that Mobility should not be a consideration when determining custody and access, these types of cases are more and more becoming routine, and landing families in court more and more, and probably a common reason why courts become backlogged.

The laws state that: "when a parent moves a reasonable distance as so to disrupt the life of the child." What does this statement mean? It is so open ended.

So what is a resonable distance? While it is true that all parents have 50/50 this 50 % threshold defines what I like to call "legal custody" In the United States our Custody is defined as Joint Legal and or Joint Physical, or Sole Legal Custody or Sole Physical Custody. There is nobody that can really take away "legal custody" of your child unless you are deemed unfit to parent.

So now we have a different definiton of the various types of Custody, on to access. No parent has the right to be denied access to their child but what is reasonable when one parent moves 50km or more? Is it fair to make the NCP pick up the tab when it was not their choice to move away from the child's home? I say child's home when I refer to their habitual residence, the home they grew up in since birth, the home in which they attend schoo, where their doctors are and extended family.

In the United States there are rules defining this "distance" it varies from state to state and city to city as it does here from province to province and municipality to municipality.

On a personal note my Divorce from Michigan actually sated that I was not allowed to relocate more than 100 miles (161km) and retain Joint Legal Custody; without the permission of the courts and or my former spouse. This is not a stipulation for "Phsical Custody" this is for me to have a say in my kids life. Now I live 183 miles (294km) and because I have the courts permission still retain my " Joint Legal Custody". I will tell you this the terms itsself in a court of law is a term only its like having a Queen or King as a figurehead with no authority. While it is Court Ordered that I have legal custody, my ex does not excercise it at all, sure I can complain but the courts will say I moved, and the resoning of my move has no bearing on anyhting.

As for Access I get my children once a month for a weekend, every other holiday and half the summer.

I ask you all to define what is a reasonable distance toensure a healthy, normal, stable life for our children?
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Old 10-12-2010, 09:34 AM
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billm billm is offline
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If you want to raise your kid as a parent should, you should live near them.

Ideally, within a few kilometers, and at most within a 30 minute drive. Simple. IMHO.
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Old 10-12-2010, 09:36 AM
ConcernenedStepMom78 ConcernenedStepMom78 is offline
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billm Thank You, so now onto the actual legalities of this, while it is true you should live by your kids if you want to raise them, the laws of Canada do not define such things, without placing families into years of litigation and finacial stress. Herein lies the problem.
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Old 10-12-2010, 09:50 AM
billiechic billiechic is offline
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Yes, but to make it a law would be punishing some families who might be able to make it work while still "violating" the law.

For example: my ex and I split up, had to sell the home. We both had no choice but to move in with family. Daughter was in daycare near our workplaces (which are 20 mins apart with daycare in the middle). I move 100km from home town, but puts me 30 km closer to daycare. Ex moves in with family in home town, still 70 kms from daycare.

50/50 established. Daughter continues in same daycare (stability) and I plan to move to town where daycare (and now school) is. Neither of us live in said town, but she is now in school there, as it is the ONLY way we can do 50/50.

Had there been a law preventing this, then my child would not be spending equal time with her parents, as the law would have been clear. Is that in her best interests? I think not, and I most definitely would be the parent with more that 50%. I would have been the one benefiting (would get my child more, CS etc), but it would not be as good for her.

So is making a law drawing a distinct line in the sand going to help most families..maybe, maybe not. It most certainly would help your case, But would it help your child? Would it help mine?
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Old 10-12-2010, 09:59 AM
ConcernenedStepMom78 ConcernenedStepMom78 is offline
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Every circumstance will definately be different. Are the parents amicable is a main issue first and foremost. What are each of their circumstances? What is the age of the child/children? Drawing a line only sets a threshhold, to limit some of the problems with the law and the amount of families having to spend so much time in court.

This is a controversial issue, and defining an exact distance can be good or bad, as I said I retain legal Custody, BUT do not get to excercise it, and the courts wont back me I am sure of it, should I choose to fight it.

When the Supreme Court made this ruling they also said that the reasons for the parents move should NOT be considered, yet over and over this is challenged in Courts, as defined by Gordon v. Goertz.
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Old 10-12-2010, 10:01 AM
ConcernenedStepMom78 ConcernenedStepMom78 is offline
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........ It certainly is not in the best interest of the child to spend years in litigation, and put families into finacial distress.
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Old 10-12-2010, 10:18 AM
billiechic billiechic is offline
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NO it isn't. But as long as parents fail to agree on what is best for their kids, it's going to happen. Is it in a child's best interest for a parent to give in and stop litigation just to stop the stress and financial strain? Even if they feel 100% sure that they are fighting for what's best?

In my case, no the parents aren't amicable. We had to get a court order (on consent) to set out those arrangements. My ex only agreed because he knew the odds were stacked against him.

The reasons for the move may not be legally important to the court, but it is important when ruling in the child's best interests. If a parent moves only for their own reasons, then it is not good for the child. But if a parent moves to benefit the child, or maintain a child's life, or obtain work to support that child, how can that not be an important reason??

The law is there to set boundaries, but lines can be moved. That is how a precendence is set. Most judges will avoid setting a new precendence at all costs, but every once in a while a case comes along that compells something that doesn't follow the law.


NOTHING about divorce is fair..
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Old 10-12-2010, 10:35 AM
ConcernenedStepMom78 ConcernenedStepMom78 is offline
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It gets sticky most definately. What I have typically read in most caselaws is a parent normally relocates either for employment "opportunities", a definte change in employment that would enhance the childs life by maintaining a more financially stable life, they relocate to be closer to family during their time of distress (meaning seperation/divorce etc) and the third reason I commonly read is for a new partner.

Despite all these reasons in many caselaws I have read that it is still not in the best interests to uproot a child from stability. So now we must define what stabiluty is for a child, given the circumstances of a broken home.

Ideally maintaining a "shared care" arrangement is what is best for the child. But a ping pong ball lifestyle can be confusing and cause undue stress to a child as well.

Are there studies proving that a ping pong ball lifestyle is better for a child than, say a week abot at each parents. With that said a week about at each parents becomes more and more difficult when distance between homes is factored into it.
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Old 10-12-2010, 10:37 AM
ConcernedDad71 ConcernedDad71 is offline
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A temporary upset in households due to financial issues, but the plan to live closer together in order to provide a more stable environment is key.

My ex stated to the Judge, yes she looked at moving closer and no she will not and cannot or wishes to.

My ex has excluded our son of 14 from her life completely solely on the fact he does not wish to stay out at her home on weekends, she does not provide an environment that makes him comfortable and he was feeling isolated and trapped and stressed out too much. He wants a relationship with her but she is not trying, or caring at all.

My daughter at the age of 8 cries continuously to both me and my ex about wanting to live with me and be with her less because she does not like the current circumstance.

What is clear to me, seeing the differences between cases is this. It is VITAL that we change the current procedures to spend less time the the early processes in place now and have a more intensive understanding of each parent's situation and short term / long term plans for themselves and the children.

I moved out and a block and a half away, my ex within a years time moved 100km away from everything our children know and expects to continue on like she still lives in the area. She cannot, it is disrupting the childrens life so much that something needed to be put in place right away. Lawyers are mostly to blame for this in my opinion because to make confusion for the Judge with BS immediately prolongs it causing the Judge to say they need more time, more time, more time...then Status Quo sets in.
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Old 10-12-2010, 10:40 AM
ConcernedDad71 ConcernedDad71 is offline
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I fear that Lawyers need to have more strict guidelines to maintain in Family Law cases. They are allowed too much room to prolong cases. Streamlining is a good start but not many lawyers wish to start this way.
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