Should I be worried (50/50)?

[Just&Fair]

Ok,

For those who don't know, here's a quick resume of my situation:

- Beginning of July this year, Mom moved-out of the house with the child without my knowledge. No abuse, no violence towards the mother or the child.

- For the month of July, I tried negotiating a shared schedule with lawyers and at mediation. She refused all of my proposed schedules and either gives me less days or less hours and of course, no overnights. The child was out of daycare at that time, so she had the upper hand.

- Since the child is now back at daycare and because we were not able to come to an agreement on a schedule, I have since picked up my child from daycare almost everyday (when not working) and I have started overnights around the beginning of August. We have now been on a 50/50 schedule since mid-August. There was no drama in implementing the 50/50 schedule, but she of course disagree with it. However, when it comes to the child, we are able to communicate well with each other.

We have a first Case Conference coming at the beginning of October. By surfing around, I'm reading more and more about the "Best Interest Test", "Tender Years Doctrine" and "Attachment Theory" to the primary caregiver.

My child is two years of age and I have always been an involve parent. Still, what I'm reading about the Courts and how some cases favour the mother because of the child's age gets me worried.

How worried should I be that I won't get 50/50 because of the child's age (2 years old)?

 

[billm]

Great that you are 50/50.

I'm sorry but I can't answer your question with first hand knowledge about losing 50/50 in court, but I would think you are fine given what you said. From what I have read here, if you play your cards right, especially considering you now have 50/50, the court will rule that it how is should stay.

I'm curious though. If at first the mother would not allow overnights, and managed to stop that, and she still is against it, what has changed that you can managed to have overnights and 50/50?

 

[Just&Fair]

I'm curious though. If at first the mother would not allow overnights, and managed to stop that, and she still is against it, what has changed that you can managed to have overnights and 50/50?

She denied me access to the child for a couple of days in July. Based on how it all went down (her moving-out with the child without my knowledge), I've noticed that she has now been extra careful to NOT be perceived as denying me access. Probably on advise from her lawyer. The result is that she stating that she does not agree with overnights, but she's not doing anything against it (besides constantly remind me that she does not agree). She even brought the kid to my place once, knowing that this was going to be an overnight stay.

My luck is that I finish work before she does during the week and daycare has become my point of access, instead of trying to negotiate with her. I slowly build my way to a 50/50 from the moment the child returned to daycare.This is the reason why she filed first in Court to try to get sole-custody.

 

[FightingForFamily]

I'd suggest you journal and document your time to prove that you've had the child 50/50 and are involved. The more evidence the better.

 

[billm]

Well, she may be unreasonable in wanting to raise the child more than you (aka who the hell does she think she is?), but at least she is not crazy and stopping access.

I think you're in a good position. Way to be assertive!!

 

[Canadaguy]

My situation was very similar and I was able to get 50/50 without court. What is your current schedule of 50/50?

She will need a valid reason why to change it and why it is bad for the child. Be prepared to counter those reasons (aka child is too young, child love mom more, primary caregiver, etc, etc all BS).

Try and delay the process as long as possible while keeping the same 50/50 schedule. Offer mediation as a solution, will lengthen the process to help establish 50/50 as status quo. A good 6 month schedule becomes status quo and judges won't change that. Start paying her CS based on a 50/50 offset amount.

Sole custody is far fetched if you have been an active parent since day 1, living together as a family. What she will probably get (which really is no different then sole) is joint custody with primary residency (primary parent) with her. This is what you have to fight for.

By her being primary, it gives her freedom to move almost anywhere with the child and you would have an uphill battle to stop her moving with the child.

You are in a good position but push for shared custody with dual residency.

 

[singledad99]

Try and delay the process as long as possible while keeping the same 50/50 schedule. Offer mediation as a solution, will lengthen the process to help establish 50/50 as status quo. A good 6 month schedule becomes status quo and judges won't change that. Start paying her CS based on a 50/50 offset amount.

This (delaying) is an excellent strategy not just for building status quo but also for building a working relationship with your ex. Once the court becomes involved the conflict level will rise (not supposed to be like that but it is what it is). With regards to CS offset amount, it is only applicable if you make more money than her otherwise she owes you. If she makes more money than you, I won't push for offset amount yet because that might trigger her to reduce your access time.

Document everything including the verbal conversations with her. Be specific and neutral when documenting and avoid emotional stuff like "I felt she didn't want me to spend more time with our child...etc." Do document if the child expresses any feelings but do not add any commentary to that.

 

[WorkingDAD]

Ok,

For those who don't know, here's a quick resume of my situation:

- Beginning of July this year, Mom moved-out of the house with the child without my knowledge. No abuse, no violence towards the mother or the child.

- For the month of July, I tried negotiating a shared schedule with lawyers and at mediation. She refused all of my proposed schedules and either gives me less days or less hours and of course, no overnights. The child was out of daycare at that time, so she had the upper hand.

- Since the child is now back at daycare and because we were not able to come to an agreement on a schedule, I have since picked up my child from daycare almost everyday (when not working) and I have started overnights around the beginning of August. We have now been on a 50/50 schedule since mid-August. There was no drama in implementing the 50/50 schedule, but she of course disagree with it. However, when it comes to the child, we are able to communicate well with each other.

We have a first Case Conference coming at the beginning of October. By surfing around, I'm reading more and more about the "Best Interest Test", "Tender Years Doctrine" and "Attachment Theory" to the primary caregiver.

My child is two years of age and I have always been an involve parent. Still, what I'm reading about the Courts and how some cases favour the mother because of the child's age gets me worried.

How worried should I be that I won't get 50/50 because of the child's age (2 years old)?

did you read Things You Need To Know About Parenting Plans for Children Under 3 Years ?

 

[Just&Fair]

did you read Things You Need To Know About Parenting Plans for Children Under 3 Years ?

I did, as well as the case law in the document where overnights were granted and those where it wasn't. The document makes no reference of 50/50 schedule, though.

------------

Canadaguy:

The schedule in place is 2-2-3. The Case Conference is next month and I think there will be a motion to have a temporary schedule in place. Of course, she will push to have the kid with her and change the 2-2-3.

-----------

I was confident that the court would see that she has been unreasonable from the start and that her leaving without my knowledge was going to be a major point in the case, but I'm not sure anymore. If she's able to break the current status quo with her motion, it really becomes an uphill battle.

I mean this Attachment Theory, Best Interest Test and Tender Years Doctrine does not smell good. It seems that I will be able to get some overnights from a Judge, but I don't know about the 50/50.

 

[Canadaguy]

Stick to your guns and prepare with factual evidence to counter the mudd she with thrown.

Fight that you have been equal parents since birth and that reducing either parents and changing the schedule would break the childs attachment and would not be in the best interest. Changing the schedule would go against the ten year doctrine and alinate you as a parent from your current role.

Push when you are in court for mediation too....tell the judge you want to work with your ex for what is best for the child and request time to do that to work out all the issues. Delay for status quo.

 

[sahibjee]

I did, as well as the case law in the document where overnights were granted and those where it wasn't. The document makes no reference of 50/50 schedule, though.

------------

Canadaguy:

The schedule in place is 2-2-3. The Case Conference is next month and I think there will be a motion to have a temporary schedule in place. Of course, she will push to have the kid with her and change the 2-2-3.

-----------

I was confident that the court would see that she has been unreasonable from the start and that her leaving without my knowledge was going to be a major point in the case, but I'm not sure anymore. If she's able to break the current status quo with her motion, it really becomes an uphill battle.

I mean this Attachment Theory, Best Interest Test and Tender Years Doctrine does not smell good. It seems that I will be able to get some overnights from a Judge, but I don't know about the 50/50.

1- Judges generally dont order any thing about custody/access on case conference unless the matter is of very urgent nature.

2- AFAIK Tender Years Doctrine is not applicable in canada, Best Interest of the Child is. if you feel the child is more attached to you, argue that its in his best interest to be with you because he may regress from what he is has learnt so far due to being detached etc.

 

[elizabethpublicover]

shared custody

shared custody

Hi ..I wish you well with this , the fact that shared custody is not mandatory is terrible. anyway I have some experience in this area. Beware the tender years doctrine ..it does exist despite judges claiming it doesn;'t ! What is hugely in your favour is that you seem to have a flexible working arrangement , and that your ex seems to also work? but the biggest advantage of all is status quo. try to drag out the shared custdoy arrangement you have now, even if it means moving the case conference , (make sure you have strong evidence ) get day care reports that your child is thriving , doctors reports , and argue that continuing what clearly is working is good for the child. Show that your child has a loving relationship with you ..photos, references etc , Courts love predictability and the longer you can show that this has been a pattern and a pattern that your child thrives in the better.

 

[Just&Fair]

Case Conference/Motion

Case Conference/Motion

(Update)

So had my Case Conference. Found the Master to be a bit pro-mom in this case. Never once was our current 50/50 status-quo acknowledged and the Master was even willing to see my time with the child reduced, to what my Ex had suggested in her brief. For a first experience with the court, that doesn't give me a lot of hope moving forward.

Besides my Ex's interference with access to my child, I'm moving into a two months status-quo. It will be three months by motion date. Doesn't it count for something?

Keep in mind that we've only been separated for about three months, so it's not like she had the time to built the status-quo that she wanted when she initially interfere with my access.

If a Judge can temporarily rule in favour of the status-quo that is currently in place, at the motion, my case looks better than what I've experienced at the Case Conference.

Anyone has experience with Motions? What should I expect?

 

[Grampie]

I found from motions, nothing much happened, the Judge offered his opinion on the ruling but often differed to allow time for more information or OCL reports and asked us to hold more Case Conferences. That said aim to extend the current arrangement and be very very careful with `Consent to temporary orders` that which you grant temporary is very hard to take back.

Make sure that for everything you give you get something you want in return.
you do not need to consent but oh lord will the lawyers pressure you to.

Tell the lawyers you and your child are happy with the current arrangement and will consent to that.

Ask for time to have a report commissioned. I hear they love parenting plans.

Every time I set foot in the court with a lawyer they asked me to give up something new each time as a token of the good faith bargaining. Saying `what if this could end it all and make it all over` or `would you be willing to give this up if it meant not going to trial` .

You do not have to `consent` rather re-propose the current with something else you would like.

 

[Mess]

A judge cannot make an order at a case conference on custody/access unless both parties consent. Were you aware of this? You should have just said no.

Whether or not they were "pro-mom", the information at a case conference is hugely simplified and not cross examined. A motion is a step up in this regard, but still not equivalent to a full trial.

If you were pressured at the case conference you should make sure you have an effective lawyer to prepare and argue your motion hearing.

 

[Just&Fair]

A judge cannot make an order at a case conference on custody/access unless both parties consent. Were you aware of this? You should have just said no.

Whether or not they were "pro-mom", the information at a case conference is hugely simplified and not cross examined. A motion is a step up in this regard, but still not equivalent to a full trial.

If you were pressured at the case conference you should make sure you have an effective lawyer to prepare and argue your motion hearing.

Yes, I was aware of how it works at a Case Conference and I was not going to consent to anything less than 50/50. Since both party did not agree on that issue, the motion will be next.

Still, even though I had an idea of what to expect, it left a sour taste to see someone, in this context, simply take the side with Mom and agree to her proposed temporary schedule, before we had the chance to say that we object, which we did later in the process. I just hope I get a fair minded Judge at the motion.

 

[firhill]

I'm moving into a two months status-quo. It will be three months by motion date. Doesn't it count for something?

Anyone has experience with Motions? What should I expect?

I'm guessing you filed the motion, with the hearing date 3 months out, so as to extend the status quo and have that be to your benefit?

Did the court set a date for a SC at the CC?

If you haven't recently submitted an Offer to Settle, it wouldn't hurt to draw one up and leave it open for acceptance up until the motion date.

 

[Tayken]

I mean this Attachment Theory, Best Interest Test and Tender Years Doctrine does not smell good. It seems that I will be able to get some overnights from a Judge, but I don't know about the 50/50.

Honestly, I will pose the same question WorkingDad did again. Did you READ the document?

I know many parents (fathers) who have 50-50 with infants that were court ordered. So, you may "feel" like the information you "need" is not there in support of what is in the child's "best interests" but, it is.

 

[Tayken]

A judge cannot make an order at a case conference on custody/access unless both parties consent. Were you aware of this? You should have just said no.

Whether or not they were "pro-mom", the information at a case conference is hugely simplified and not cross examined. A motion is a step up in this regard, but still not equivalent to a full trial.

If you were pressured at the case conference you should make sure you have an effective lawyer to prepare and argue your motion hearing.

To further emphasize...

Custody and Access is a substantive issue that CANNOT be ordered at a case conference and can only become an order if BOTH parties CONSENT to the order.

Know the process like Mess is stating. Judges will twist arms but, on a very limited set of information and not even real "evidence" at a conference.

Also, you need to really understand what you are willing to compromise on for every step of the process.

 

[Just&Fair]

I'm guessing you filed the motion, with the hearing date 3 months out, so as to extend the status quo and have that be to your benefit?

Did the court set a date for a SC at the CC?

If you haven't recently submitted an Offer to Settle, it wouldn't hurt to draw one up and leave it open for acceptance up until the motion date.

Not really. We wanted the motion date to be at least 3 months from the Case Conference, but the Master pushed to have it earlier. At the motion, we're going to be on almost 3 months and a half of current status-quo.

SC was not set. The motion is to deal with temporary access of the child pending trial. She wants to disrupt the current status-quo before it builds up.