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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 07-06-2010, 02:58 AM
Stemmy Stemmy is offline
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Default Help filing Emergency Motion

Hello All,

I was wondering how I go about filing an emergency motion for custody/access to my daughter? And if in your opinion that an emergency motion would be granted due to her technically offering me access? My motion would be to take full custody as she is not well to take care of her and I can fully support and take care of her even though I am lviing at my parents residence (which she has also been doing for the last 7 months even though she has a house of her own)

I haven't seen her in nearly 2 months due to my ex withholding her from me. She has sent back a few offers for access that I am having trouble accepting as they are making me jump through extreme hoops making the access NEXT TO IMPOSSIBLE.

I am pasting what her lawyer sent back to my lawyer. I have deleted the names to protect privacy but the rest of the letter is pretty much in tact.

My comments are after the letter.

I hope that you can read and understand things and let me know.

-----------
Further to your letter of June 17,h, 2010 and our telephone attendance, I will partialfy respond to your letter so that hopefully some access can get under way.

1) My client is agreeable to joint custody however she will want primary residence and she will want the authority to make final decisions in the event the parties cannot agree on matters relating to health and education. You have witnessed the level of animosity between our clients and it is simply a recipe for continuous conflict to leave the parties in a position where they must agree on such matters;

2) Your client can have {Child} in his care Tuesdays and Thursdays but {Child} schedule is such that {Mother} would like her returned by seven so that her normal routine is not disrupted;

3) Your client may have {child} alternate Sunday's from three until seven p.m. Every Sunday places {Mother} in a position where she cannot ever have a weekend to herself with {Child}. Because {Mother} is often at her parent's trailer on the weekend she would prefer access start at three so that she is not rushed to get back in time;

4) Access cannot be at the paternal home until testing has been completed to demonstrate that there is no second hand smoke, I know McMaster University will conduct this testing at a reasonable price as other clients have done this. My client is also opposed to access at the {Friend} residence. Obviously the best thing would be for your client to obtain his own accommodation so that these would not be issues;

5) You are aware of our position with regard to support but obviously it is better that {ME} start paying something. My client does not want these payments by way of an email transfer;

6) An OCL can be retained to conduct an investigation to accelerate the process if your client wishes, but it will have to be undertaken at his expense in the first instance and your client can argue about ultimate responsibility once we have received some indication of opinion from whomever is retained.>>

Your client will need to demonstrate that he has a suitable car seat for {Child} and he will of course be responsible for providing food, diapers and changes of clothing for {Child} while she is in his care.

You may imagine that my client is still very upset over the comments made by {ME} during our attempted meeting.

My client is not at all happy about {ME} comments or actions but she is trying to put all of that aside and allow him to have a relationship with {Child}. Perhaps you could speak to {ME} about a more diplomatic approach to these matters.
---------------------------
This is a response back from my lawyers letter requesting for 3 hours tues/thurs and every sunday until we get to court and can get it changed.

My comments on the paragraph points

1. I can't give her final decision making power as I don't trust that she will make the best decision of our daughter (She has already proven that by witholding her from me after repeated attempts to break the logjam)

2. This is not unreasonable as far as Addison's routine and I would like to avoid disrupting that as much as possible

3. This is in my ex's best interest not my daughters I don't see how I can have a relationship with my daugher for between 5 and 8 hours per week depending on the week but it "interferes" with her schedule which is ONLY serving her best interest

4. I have spoken to a number of people regarding this clause and most think it is rediculous especially considering she knows what I am like with regards to smoking. I actually had arguments with my mom about this well before my daughter was born and told her she would not be in this house if there was smoking. My daughter is nearly nine months old and there has not been smoking since before she was born but my ex is refusing to allow me access without meeting this clause which is extremely time consuming and difficult to address not to mention financially not feasible. Also access at my friends residence is only to be vindictive as my ex knows that I am good friends with them and would take my daughter there on a regular basis.

5. I am paying child support based on my income for the last 3 years per table and it is actually slightly higher than table (only about $7) although it can be argued as I am self-employed. I am not hiding money but she seems to think I am and feels my income is substantially higher than what I am decalring. It is actually about $3K higher than when before we were dating and/or my daughter was born so there is no funny business going on and I know it would stand up to a government audit. Also, the reason I want to pay by email transfer is that she constantly bitches and complains about money yet anytime I have given her a cheque she sits on it for weeks at a time and I don't want to take the chance of the cheque bouncing as I am still pretty tight for $$$ going through my accounts, with an email money transfer the $$ are out of my account immediately and it's up to her when she accepts them. My other alternatives are time consuming and expensive as I would either have to do bank draft and/or money order.

6. I have talked to my lawyer about this and unfortunately I am not able to request this myself although my lawyer said he would look into it I don't believe he has.


The last paragraph's are only meant to split hairs and make me look like a deadbeat but basically I was the one to purchase the infant seat, my parents bought the 3 stage seat as well so I should be able to use it but if I have to purchase another one to see my daughter then so be it. I'm not about to quibble over $200 if it means I can see my daughter. I'm not exactly rolling in cash to afford everything but I will go without something if it means I can see her. Same with the comments about feeding, diapers, etc. I have enough food, diapers and other necessities for my daughter to take care of her for a month fulltime without having to purchase anything at the moment as I have been stocking up on them (as time/$$$/sales permit) but it is my understanding that the CP (Mom unfortunately) should be providing this to the NCP during access am I correct?
As for diplomacy he has the audacity to tell me to speak on a more diplomatic approach but his client couldn't be further out in left field when it comes to diplomacy
--------------

I hope you have read and understand this and greatly appreciate anyone taking the time to offer support and/or comments both constructive and critical are appreciated as I want to know if I'm out of line as well. I don't want this to be a power stuggle and me not seeing my daughter only because it's not on my terms but there are 2 terms that I don't feel I can adequately meet as I feel they are EXTREMELY unreasonable and/or not feasible.

Regards,
Stemmy
  #2  
Old 07-06-2010, 07:00 AM
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Quote:
My client is agreeable to joint custody however she will want primary residence and she will want the authority to make final decisions in the event the parties cannot agree on matters relating to health and education. You have witnessed the level of animosity between our clients and it is simply a recipe for continuous conflict to leave the parties in a position where they must agree on such matters;
Not wholly unusual OR unreasonable. You ALWAYS retain the ability to file a motion if you disagree with the decision. If you want to end this quickly...then agree to it...unless she is totally batshit crazy. If she makes a really really poor decision and you can prove it, then you can use it as a motion to vary the existing agreement and request additional time or to have that clause struck down.

Quote:
2) Your client can have {Child} in his care Tuesdays and Thursdays but {Child} schedule is such that {Mother} would like her returned by seven so that her normal routine is not disrupted;
Agree to this with the caveat that this is temporary as the child is breastfeeding. Make DAMN SURE you mention that part. If you are trying to get this solidified to move along with your life, then you need to make sure you settle the permanent custody issues for when the child hits 1 year. Otherwise you are going to wind up right back where you started in 3 months.

Quote:
Your client may have {child} alternate Sunday's from three until seven p.m. Every Sunday places {Mother} in a position where she cannot ever have a weekend to herself with {Child}. Because {Mother} is often at her parent's trailer on the weekend she would prefer access start at three so that she is not rushed to get back in time;
Yeah the time is kind of retarded. I wouldn't cave on the every weekend thing. I would at a minimum request that you get the child the same amount of time as your Tuesday/Thursday access as above. (At a minimum this means if she EVER tries to fight you on it...you have an established 3 days of status quo/week). Perhaps respond with that you are amicable to watching the child for an extended weekend once/month for now to allow her a weekend to herself, or offer it as part of gradually increasing the time up to what you want to wind up with as part of the permanent arrangement.

Either that, or indicate you will do every other weekend (Sat + Sun with your regular hours at this time)..Once you start increasing the time to include overnights...this puts you at 6 days in 14...or 42%.

Quote:
Access cannot be at the paternal home until testing has been completed to demonstrate that there is no second hand smoke, I know McMaster University will conduct this testing at a reasonable price as other clients have done this. My client is also opposed to access at the {Friend} residence. Obviously the best thing would be for your client to obtain his own accommodation so that these would not be issues;
I wouldn't bite on this. If SHE wants to argue about the smoke thing, then either let HER pay for it or offer to pay half to ease her mind. Unless she can prove that your Friend's location is a danger to the child, she cannot dictate where you take the child.

Quote:
You are aware of our position with regard to support but obviously it is better that {ME} start paying something. My client does not want these payments by way of an email transfer
Respond back with what you have been paying, provide them your last three years income tax assessment and indicate that as she has issues with cashing the cheques in a timely manner that some other method is necessary. Request they provide you with some other viable method other than email money transfer, cheque, or just handing her cash.

FYI, if you know the branch she has her account with, you CAN go in and deposit the funds directly. All you need is her name and mailing address and they can look it up for you. Having the account number makes it a TON easier, but if she doesn't want to give you her primary account, ask her to open a new one JUST for the purpose of CS. A basic accounts monthly fees are around $5.95....since you are already paying $7 MORE than what you are supposed to...let her use that.

Quote:
Your client will need to demonstrate that he has a suitable car seat for {Child} and he will of course be responsible for providing food, diapers and changes of clothing for {Child} while she is in his care.
I'll give you two pieces of advice here. Pick whichever one suits. IF you want to be an every other weekend father...then fight this. YOU are paying support...THOSE things are what support covers in a sole custody situation.

IF you want joint(at least)....then agree to that without a fight. Why? Because it is just one more small thing you can use to show you are fully involved in the child's life. Yes it's better if the car seat follows the kid...BUT if things are tense....suck it up and buy your own. You can get a used one for < $50, and as long as it's < 5 year's old.....it's still good.

It can be the ugliest ass thing in the world....but as long as it's safe and you can show that...she doesn't have a leg to stand on. (If you want to make doubly sure that it's safe....the local hospital's Labor and Delivery unit can typically either provide inspection of the car seat, OR point you in the direction of an organization that can). Obviously you need to have the child WITH you when you have them inspect it...so they can make sure it fits properly. Once the safety is cleared by them, she can't try to use that against you.


Last edited by NBDad; 07-06-2010 at 07:05 AM.
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Old 07-06-2010, 09:17 AM
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Quote:
4) Access cannot be at the paternal home until testing has been completed to demonstrate that there is no second hand smoke, I know McMaster University will conduct this testing at a reasonable price as other clients have done this. My client is also opposed to access at the {Friend} residence. Obviously the best thing would be for your client to obtain his own accommodation so that these would not be issues;
Before I get into this, I want to stress that my ex and me are both non-smokers, and we had issues with her parents over smoking, similar to what you have. I do understand the factual concerns, but she is over the line here.

She is using this to fog the issue and delay giving you any access. Write back that this is just an obvious delaying tactic that indicates bad faith, and that access will begin immediately, the onus is on her to prove that there is any threat to the child's health and you will co-operate by allowing any testing that she will pay for. State that the mother shall not continue to withhold access without factual evidence of a threat to the child's heath and safety. Word it like that.
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Old 07-06-2010, 09:24 AM
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Stemmy:

I would file your motion, though not emergency, as there is no child endangerment, what is "not well", pending that I don't think you would get an emergency motion, go down get it in front of a Judge ASAP an interim without prejudice order! I would not send what you've written to her lawyer, if that was the intent of your post. Stick with your facts go to the court house, explain the situation that your ex is withholding access. Did you have access after separation and she is now withholding, or has she been withholding since separation? It's important!



As for the breast feeding crap, do you really believe that she is still breastfeeding? And even if so, breast milk can be pumped, also they're telling you that you can have your child Tues and Thurs until seven or so, surely the child will have to be fed before then, nope sorry there is no excuse to withhold access.
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Old 07-06-2010, 09:26 AM
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good advice. I hope you can move forward with this. I would give her no more than a week to respond and if she doesn't go for hte emergency motion. It seems there is NO VALID REASON you aren't seeing your child.

Is the child breast feeding? I can't see any reason (other than that) why she couldn't write down the child's schedule and you follow it as well. If you are willing to do that, she doesn't have a leg to stand on.
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Old 07-06-2010, 09:39 AM
Stemmy Stemmy is offline
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Thanks all for the advice. Just an FYI that she is NOT breastfeeding. She hasn't from the start as she is on too many harmful medications including morphine that she wasn't able to anyway. My daughter was actually born with a bit of dependency to it and she had to stay in the hospital for nearly 10 days because of it.

She is very happy and healthy though now (at least when I seen her last)
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Old 07-06-2010, 09:59 AM
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Sadly... its not an emergency as they offered access -- I think I would accept access as offered on a without prejudice basis and file regular motion for interim issues ASAP.
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Old 07-06-2010, 10:13 AM
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Originally Posted by logicalvelocity View Post
Sadly... its not an emergency as they offered access -- I think I would accept access as offered on a without prejudice basis and file regular motion for interim issues ASAP.
Exactly! The longer he waits the worse it get for him, been there done that, I wish I would've been more informed from the onset and looked up this site a long time ago!

Yes, he needs to except the offer for now for access WP, but they seem to want him to jump through all the hoops, doesn't it seem like the more hoops he jumps through, the more they'll hand out?
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Old 07-06-2010, 10:15 AM
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YES!!

Take what time you can get now and file to get more.
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Old 07-06-2010, 10:20 AM
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Originally Posted by LostFather View Post
Exactly! The longer he waits the worse it get for him, been there done that, I wish I would've been more informed from the onset and looked up this site a long time ago!

Yes, he needs to except the offer for now for access WP, but they seem to want him to jump through all the hoops, doesn't it seem like the more hoops he jumps through, the more they'll hand out?
Let the high and mighties decide which hoops to jump thru. Communicate and Co-operate. Bite your lip and smile. The one sided conditions will continue and eventually demonstrate how difficult one parent made it for the child to sustain and foster a relationship with their other parent.
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