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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 01-23-2013, 04:55 PM
sahibjee sahibjee is offline
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Default Dramatic Development - Custody and SA

Alright folks, here is the summary of the situation.

Married 3.5 years, separated for almost 1.5 years after a series of false DV allegations, which were eventually resolved when crown dropped the charges.
I have been paying CS from the start & SS after a court order through FRO. The ex was given temporary custody while charges still existed. So far she was fighting tooth & nail to get custody.

Last night the EX called me to advise that she is going to be leaving the country for an extended (unknown) period of time (or permanently) in March 2013 to move back to lalaland, she is going to be leaving our 4 years old son with me and has as such verbally agreed to give me custody.

In light of the new dramatic I am preparing an SA, please help me draft it, specially proper wording & missing clauses.

I need your opinion especially on the following
I am not adding any thing about CS payments from her to me in the SA for two reasons
A - I dont care much about getting money from her

b - I dont want her to change her decision of giving me custody just because she will have to pay CS.
Could it come back to bite me? If it could, can I (and will I need to) start a new application to get CS from her?

The current Draft SA.
1- Respondent father to have full custody of Child (DOB).

2- Respondent fathers residence to be considered primary residence of the child.

3- Applicant Mother to have access every Wednesday from 4 PM until Thursday 10 AM. Pickups & drop offs to take place at the childs daycare/school.

4- Applicant Mother to have access every Friday from 4 PM until Saturday Evening 8 PM, Pickup to take place at the childs daycare/school & drop off at Respondent Fathers residence in the lobby or front entrance or any other location as agreed by the parties in advance in writing.

5- Applicant mother to have access every other weekend from Friday 4 PM until Sunday Evening 8 PM. Pickup to take place at the childs daycare/school & drop off at Respondent Fathers residence in the lobby or front entrance or any other location as agreed by the parties in advance in writing.

6- If the applicant mother has not visited the child in 180 days, Para 3, 4 & 5 become suspended until a reunion visit has completed.

7- A reunion visit following the 180 days period will be supervised by the respondent father, or another third party to whom the child is accustomed to being with as appointed by the father. The purpose of the first reunion visit would be to reintroduce the child to his mother.

8- Any further access as agreed upon the parties in writing in advance.

9- All child & spousal support payments from the father to the mother terminate from the date of approval of this order.

10- All arrears of support are terminated henceforth, The Director of Family Responsibility office is ordered to stop any further deductions from the respondent father and reversal of such payments if deducted after this order is issued.

11- The applicant forfeits any claim in the remaining household properties henceforth which shall be transferred to the respondent in March 2013 on a mutually agreeable date.
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Old 01-23-2013, 10:14 PM
WorkingDAD WorkingDAD is offline
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That is crazy.... anyway keep in mind that if you want it to be registered with court (and you do want it) it should be legal and from what I know judge will have issues at least with no child support clause. So it better to be as it should be....

Wd
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Old 01-23-2013, 10:34 PM
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arabian arabian is offline
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My advice is: do not fail to do something today which you might regret tomorrow.
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Old 01-24-2013, 12:16 AM
topooner topooner is offline
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Whoa!! The Crown dropped the charges. They must have been reaaaallllyy frivolous. The don't just drop DV cases no mater how frivolous they are.
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Old 01-24-2013, 08:11 AM
red6419 red6419 is offline
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Quote:
Originally Posted by WorkingDAD View Post
That is crazy.... anyway keep in mind that if you want it to be registered with court (and you do want it) it should be legal and from what I know judge will have issues at least with no child support clause. So it better to be as it should be....

Wd
judges and the courts don't review agreements that are filed with the courts. you can agree to what ever you want and file it with the courts. the only time the courts come into your agreement is if you can't agree and ask the courts to become involved.
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Old 01-24-2013, 08:29 AM
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^ True. You can register your agreement with the courts.

As far as your content, is the 180 days clause really necessary? Maybe you already have this experience and want to be prepared, but if you are concerned that your ex may not sign, this is going to be really aggressive to her. What do you really gain here? If your ex doesn't see your child for 6 months, do you think you would have trouble asking that there be a "getting reaquainted visit" prior to restarting overnights? Would it not be possible, in such an event, that you could just suggest getting together for a "family day" over a weekend prior to resuming sleepovers? I think this section will be off-putting to your ex.

I agree with your thoughts on CS; your ex may not sign if you put it in her face that she will start paying child support next month. If it becomes financially necessary there is nothing to stop you from seeking CS in the future. You cannot make a legal contract that completely obliterates the child support responsibility. The only downside is that you may not be able to seek retroactive support, but it seems you don't mind that.
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Old 01-24-2013, 08:55 AM
sahibjee sahibjee is offline
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Quote:
Originally Posted by topooner View Post
Whoa!! The Crown dropped the charges. They must have been reaaaallllyy frivolous. The don't just drop DV cases no mater how frivolous they are.
yup, holes in the story only the size of the moon, plus any one listening to the 911 call with half a brain could easily tell that she just wants to put me in trouble because "we are breaking up".

Quote:
Originally Posted by Mess View Post
^ True. You can register your agreement with the courts.

As far as your content, is the 180 days clause really necessary? Maybe you already have this experience and want to be prepared, but if you are concerned that your ex may not sign, this is going to be really aggressive to her. What do you really gain here? If your ex doesn't see your child for 6 months, do you think you would have trouble asking that there be a "getting reaquainted visit" prior to restarting overnights? Would it not be possible, in such an event, that you could just suggest getting together for a "family day" over a weekend prior to resuming sleepovers? I think this section will be off-putting to your ex.
our son is autistic, and even though never diagnosed from the signs I see i believe she might as well be. as unfortunate as it may be the sickness makes you unpredictable, sudden out bursts of anger and such are common in both the mother and the child. she has never really been reasonable in the entire course of litigation. the clause i intend to put in is simply intended to prevent a mishap between the mother and her child from happening, but may be i can reword it to a "family day" as you said.

thanks for all the responses so far.
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Old 01-24-2013, 02:07 PM
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Sahibjee,

As you know, I am not always positive on these kinds of positions. I am hoping to provide a reality check for you so things don't erupt in your hands when you try and establish an agreement to sole custody and majority access even if the other party to the matter wants to agree to that.

Based on the messages posted here by you, and as I have repeated this numerous times to the board (stolen from another contributor):
DISCLAIMER:

Everything post to this message board, and any other message board, private message or public message is not intended to be taken as legal advice or medical advice. I do not hold myself out to be a lawyer, clinician, adult or literate. Any resemblance this or any other message may have to legal advice or common sense is entirely coincidental. This message was generated through the combination of a cat walking across a keyboard and advanced expert system software and rarely spell checking software.
You really need to step back and realize that this is all possibly an "emotional tactic" of a possibly highly conflicted person exhibiting behaviour patterns of an Axis II disorder of the personality. I invite you to explore the publicly available literature that I share from real qualified lawyers and clinicians on the subject matter to better determine this for yourself.

You need to question if this person, who in the past in another thread for which you shared this evidence, is really engaging in a dramatic and histrionic "push me - pull me" strategy. As weird as this would sound in the context of the situation, this is not an uncommon pattern of behaviour for someone who is highly histrionic, depressed, anxious and/or avoidant in many aspects of their personality traits and composition.

Quote:
Originally Posted by sahibjee View Post
Last night the EX called me to advise that she is going to be leaving the country for an extended (unknown) period of time (or permanently) in March 2013 to move back to lalaland, she is going to be leaving our 4 years old son with me and has as such verbally agreed to give me custody.
Questions to ask yourself?

1. Why over the phone?
2. Why not in writing?
3. Why not just serve an offer to settle to that effect?
4. Why all of a sudden?
5. Why after all the fighting, charges, etc... would this person do this at this point in time?
6. If this person has legal counsel... Did they talk to counsel prior to the call? Why didn't the lawyer inform you? What happens when the lawyer finds out what was said? What happens if the person in question denies even stating what was said viva voce to you on the phone?
7. How could this situation be a pattern of entrapment? (I will answer this shortly)

Quote:
Originally Posted by sahibjee View Post
In light of the new dramatic I am preparing an SA, please help me draft it, specially proper wording & missing clauses.
Note the word highlighted in bold sahibjee. Also, note the word before it. "New" and followed by "dramatic" generally shouldn't "surprise" anyone in your matter in my honest opinion. New is something that hasn't happened before. These kinds of emotional tactics are quite common in your postings to this very site. Review the history of your matter... There is constant drama in the matter. So, I would really think long and hard to how you used the term "new". It is "different" that past drama but, drama is not uncommon or "new" on your file. In fact, I would suggest it is expected and a qualified expert should you have retained one would be able to easily anticipate and predict these patterns of behaviour you post regularly to this site.

Quote:
Originally Posted by sahibjee View Post
I need your opinion especially on the following
I am not adding any thing about CS payments from her to me in the SA for two reasons
A - I don’t care much about getting money from her

b - I don’t want her to change her decision of giving me custody just because she will have to pay CS.
Here is an opinion.

1. Write to the other parent's counsel notifying them of the call (date and time to the minute) and even the duration of the call. If you got it on a cell phone look it up. Call durations are tracked.

2. Identify the factual statements that the other parent made:

Your client, during the call at H:MM:SS on Day, Month, XX, year, made the following statements of claim to me over the course of this telephone call that lasted HH:XX:SS (1 hour, 40 minutes and 30 seconds):

1. Your client was intending on moving to country the_country;
2. Your client would be exiting the_country in and around the_date;
3. Your client would be remaining in the_country from the_date until return_date; and
2. Your client would like our child, childs_name, to reside primarily with me during this time;

In order to facilitate your client's request I have some concerns which I would like you to address with your client prior to the formulation of any agreement regarding our son, childs_name, custody and access.

(a) I strongly feel that it is against the best interests of childs_name to not have both of his loving parents equally involved in his life both in custodial decisions and the time (access) he spends with your client and myself which should be equal;

(b) That our son, childs_name, needs both his parents equally involved in his life and that our equal involvement in his life and any change to this could have a negative impact on our son's emotional health and well being. Be this by your client agreeing to what was proposed and/or a court ordering otherwise in our matter.

I kindly ask, as a professional involved in assisting the other parent in the matter you clarify the statements your client's position as stated in the above mentioned telephone call in writing.

Although I am not supportive of either parent obtaining "majority access" of our son, childs_name, if your client would like to persue living in the_country and for our son, childs_name, to reside primarily with me I would be agreeable to negotiating this matter with your office.

Yours very truly,

Quote:
Originally Posted by sahibjee View Post
Could it come back to bite me? If it could, can I (and will I need to) start a new application to get CS from her?
Yes, you jump to fast, too hard and put too much pressure and there is no lawyer on the other side advising the other party. Emotional stress will be a factor heavily weighed if anyone tries to enforce the order.

After everything you have posted, the fight put up against joint custody and equal access involving OCL, police, courts, etc... I find it quite odd that the other parent would walk away just like that.

You do have to realize that this kind of "emotional ploy" is quite common with possibly Axis II disordered people. (Note the use of "possibly" EVERYONE.) So, it may be a point of trying to have some connection to you, to get you back as weird as that sounds. Go back and read your other thread and what PH told you. Her advice was stellar on the matter.

It is time to put your logical hat on and not fall for any emotional traps that have alternative motives about your "relationship" with the other parent.

Good Luck!
Tayken

Last edited by Tayken; 01-24-2013 at 02:09 PM.
  #9  
Old 01-24-2013, 02:13 PM
FaithandMorals FaithandMorals is offline
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^^ REALLY wise words. It COULD be that the other parent is trying to bait you Sahibjee to look like you want sole custody and are acting against the child's best interest.

Tread carefully where Angels fear to fly.
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Old 01-24-2013, 02:36 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by FaithandMorals View Post
^^ REALLY wise words. It COULD be that the other parent is trying to bait you Sahibjee to look like you want sole custody and are acting against the child's best interest.

Tread carefully where Angels fear to fly.
Warning to "negative advocate lawyers" reading this thread:
I felt a great disturbance in the Courts, as if millions of lawyers suddenly cried out in terror and were suddenly silenced. I fear something terrible has happened.
I am going to share some advice that only very senior lawyers share amongst themselves. I have heard it in passing between lawyers lamenting about their client files in court houses quite often. In fact, two very senior lawyers have confirmed what FaithandMorals is stating.

It is a well know tactic for negative advocate solicitors to have their client offer up something like this to an unrepresented party so they generate tangible (documented) evidence that the other parent is willing to "take" sole custody if offered.

You have been arguing for full joint custody and 50-50 access. So, what better than a document improperly served where by you are offering "sole custody" and "majority access" be with you?

These negative advocates push their clients to document no offers, opinions or suggestions to the other parent in the matter quite often. They will instruct their clients only to talk viva voce. In fact, even in highly conflicted situations these negative advocate solicitors will even send letters requesting the other party's contact telephone number etc and letters from their clients to the effect of "lets work this out". Even when there are restraining orders in place.

The requests are loaded with emotional reasoning, projections of blame, and other elements of histrionics regarding the situation.

So, the expectation is for you to call and say something for which they can generate total hearsay evidence on. The whole he-said-she-said pattern of behaviour that these negative advocate solicitors like to instruct their clients to put into affidavits.

What they don't realize is that if their clients want to settle matters they should be putting together a comprehensive "offer to settle" in accordance with Rule 18 of the Family Law Rules and not emotional and personal letters asking for telephone calls. What they also don't consider is that on cross examination a question why they didn't offer to settle the matter at that time rather than sending a personal letter requesting a "meeting" just between the two parents, with no other third parties present, would even be requested by their client who has sworn statements to the truth that the person they are requesting to meet with is "abusive".

So, don't get entrapped into what they may be expecting of you. To serve an offer to settle for sole custody and majority access in return. Also, you are unrepresented, so if you screw up on identifying that what is sent is an offer to settle made in accordance with the Rules... They will attach it to an affidavit or put it in a trial record...

Good Luck!
Tayken
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