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Can Response to Motion to Change include other topics than the one it was filed for?

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  • Can Response to Motion to Change include other topics than the one it was filed for?

    The ex filed motion to change to reduce child support payments and defer them for an unspecified length of time. In response I can agree to some of the things he asked for but I want to ask for full custody as he is not in the country. Since the separation which was Dec 2011 he has only been in Canada for 10 months.

    Separation Dec: 2011
    Simple Joint divorce application filed: Jan 2013
    Private separation agreement for rest made: Jan 2013
    Divorce Order: March 2013
    Divorce Certificate: April 2013
    Child Support Payments not made since April 2013

    Three boys and I'm their only parent for all practical purposes...

    Thanks in advance for any help this forum provides.

  • #2
    Do not piggyback on someone else's motion by simply responding to motion and adding on your request. My ex's lawyer tried that and was reprimanded by the judge.

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    • #3
      If you have things you want an order for then you respond with a motion of your own.

      Hence your motion is for things you want in an order on your motion, and is also a response to their motion. You would state such in your material.

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      • #4
        Living out of the country does not terminate your ex's rights as a parent.

        Why do you think a judge would order sole custody?

        You maybe able to request certain things like not needing his signature for passports or to travel etc. But there is no reason they shouldn't be an active party regarding important decisions in your child's life.

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        • #5
          I believe it would be a cross motion...

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          • #6
            Do not piggyback on someone else's motion by simply responding to motion and adding on your request.
            A motion to change is an originating process, closer to an Application than a pure motion.

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            • #7
              Thanks everyone for the suggestions and advice.

              I absolutely agree that just being out of country doesn't mean he doesn't have parenting rights. However... With rights comes responsibilities. He has not been an active parent especially since after the separation and has left country three times for 3-4 months each time without informing me or the boys. He didn't even make an effort to stay in touch with them. Didn't even call on their birthdays ... Hasn't done anything for the boys emotionally, physically, or financially in the last 10 months. So why does he have the right to still be their parent?

              This is neither a rhetorical or philosophical question. I'm asking from the legal persepective: what is the definition of a parent in joint custody?

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              • #8
                Originally posted by OrleansLawyer View Post
                A motion to change is an originating process, closer to an Application than a pure motion.
                To answer then to the OP question, they would respond with form 15B: Response to Motion of Change which also has section(s) for claims or changes of their own.

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                • #9
                  Originally posted by minazar View Post
                  Thanks everyone for the suggestions and advice.

                  What is the definition of a parent in joint custody?
                  It only reflects upon decision making of schooling, religion, and medical, and nothing else.

                  Hence, typically any claim for sole custody in family law is typically for "control" and "money". A bit of a paradox within family law and the "best interest of the child", and simultaneously in relation to parenting.

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                  • #10
                    Thanks limer for the response and referring to form 15B. I read those sections and knew I could use it to request changes of mine but I needed validation. So thanks...

                    As for Joint custody vs. Sole custody issue I'm still confused why him not having the right to make decisions for his kids will not in be kids best interest. As you said most parents use the joint custody as power and control issue. Yes, that's how I look at it. He's not parenting the kids at all but wants to exercise his right when it comes to any big decisions.

                    I'm just realizing you may have meant that having sole custody gives the power and control over what the other parent has to say. In my case, I fear him questioning me or suing me for making decisions for kids in his absence

                    So what are the grounds for asking for sole custody?


                    Sent from my iPhone using Tapatalk

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                    • #11
                      A I understand it, people usually ask for sole custody because either a) they are control freaks and want to cut the other party out completely; or b) the other party is not competent to act as a parent (mental illness, in and out of jail, completely unstable); or c) the other party has dropped off the face of the earth and has no interest in the kids. If your ex has moved to another country, has not paid CS in nearly a year, and has not shown any interest in the kids (no birthdays, no Christmas, no holidays, no interest in their schooling, etc) you might have a case for c. However, the onus would be on you to prove that he is not involved or interested in their lives, and it's hard to prove a negative. He can always say his circumstances have changed and he's ready to play more of a role in their lives. You might do better to ask that you be granted final authority over educational, medical, religious, travel and residential decisions (i.e. sole custody in all but name) rather than to ask that custody be changed from joint to sole.

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                      • #12
                        I like your suggestion. Thank you so much for taking your time and responding to the post.


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                        • #13
                          He can always say his circumstances have changed and he's ready to play more of a role in their lives.
                          Which am sure the courts will be willing to hear more about, and the proposed plan

                          You might do better to ask that you be granted final authority over educational, medical, religious, travel and residential decisions (i.e. sole custody in all but name)
                          Those two things in BOLD...what is the parent isn't really the education type? Also, why would you want to have final authority on travel?

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                          • #14
                            I guess freedom to travel without his consent is what I am aiming for. And for me it will be the religious upbringing of the kids that can be a contentious issue...as for educational decisions .., I think I want my kids to make that choice. We as parents are there to enable that choice.

                            While at it... I might as well ask the biggest question: if I start living with someone (a man ) how will the court see it if the ex files a motion to change primary caregiver responsibilities especially on religious grounds...


                            Sent from my iPhone using Tapatalk

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                            • #15
                              Originally posted by minazar View Post
                              I guess freedom to travel without his consent is what I am aiming for. And for me it will be the religious upbringing of the kids that can be a contentious issue...as for educational decisions .., I think I want my kids to make that choice. We as parents are there to enable that choice.

                              While at it... I might as well ask the biggest question: if I start living with someone (a man ) how will the court see it if the ex files a motion to change primary caregiver responsibilities especially on religious grounds...


                              Sent from my iPhone using Tapatalk
                              If you have their passports then based on the location, purpose, and duration border security wouldn't have an issue unless he red flags it. The consent form is just a measure in case problems were to arise at the border.

                              If you don't have their passports then that would be a starting point to go "fishing" to ascertain how he might react.

                              Throw passports and religion (ethnic?) together then another question could potentially be mobility.

                              Insofar as religion issues....others might have better insight. I'm agnostic .

                              Comment

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