DIVORCE TIPS
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Legal Disclaimer:
Note that the author is not a lawyer and
any information provided is just helpful knowledge from someone
who has been there. You should not interpret it as legal advice. The
author is not responsible for adverse outcomes related to acting upon
any information offered. Consult a lawyer when
necessary.
All tips are (c) 2008, Eric Dormer.
DIVORCE TIP 004
DIvorce Tip #004:
Emergency Motion for
Access
08-Mar-05
Hi Divorce Tip Guy,
My wife and I just split up and are living separately. Now she wont let me see my daughter at all. What can I do ?
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The information contained below in
this tip is
Copyright (c) Eric Dormer, 2008.
Legal Disclaimer:
Note that I am not a lawyer and any information
provided is just helpful knowledge from someone who has been there.
You should not interpret it as legal advice. The
author is not responsible for adverse outcomes related to acting
upon any information offered. Consult a lawyer when necessary.
In Ontario, there is a presumption of Joint Custody upon Separation, until another determination is made by the court. Thats the theory, but in practice it seldom turns out that way. In reality, the kids usually seem to be with the mother in the first few days when the parents split up and live separately because the father is asked to leave and he foolishly obeys. Once that residency pattern is established, with each day that passes, custody and primary residency become entrenched with the mother.
The "status quo" seems to make up MOST of the basis for the decision about where the kids will live. The courts basically dont like to cause changes in the children's lives. Most of the time, whereever they have been living prior to the court date, is where the court will tell them to live.
During the critical days and weeks (and months) immediately after separation, sometimes a mother will refuse to let the dad see the kids at all because she gains negotiation leverage, because she strengthens her claim to custody and being the primary residence of the kids, or just because she is angry with the childrens' father.
Most men are severely affected when they are cut off from their kids. Denial, Bargaining, Anger, and Depression are common responses. Not only does it make them unhappy, it also makes them ineffective in defending themselves and pressing their case in a constructive way. If the man can be provoked into yelling, harassing, threatening, or assaulting the mother, its all over. She will have sole custody, and he will be labelled as a dangerous angry man.
Step 1 is STAY CALM. Don't start yelling, or threatening, or banging on doors, or grabbing children and driving off. Its a very good idea to have a neutral credible 3rd party present if you have any direct conversations with your ex.
Step 2 is TAKE ACTION. Do not be intimidated by her claims or demands. Do not DENY the obvious fact that you cannot negotiate constructively when one party is a bully. You have to stand up to it in a meaninful way. This means taking calm legal action that presents you as attentive, concerned, reasonable, non-aggressive, and non-violent. Many men feel like they have no option and simply dont persue access promptly. Its very important to take concrete action, and document it.
Step 3 is BE REASONABLE. The moment you know your ex is denying you access to your kids, write a registered letter to her which clearly states that you want access on reasonable terms. State any access arranged shall be without prejudice to a final determination of custody and access by the court. What this means is that agreeing for now to see your kids on any particular schedule, such as for every other weekend and one night a week of access does not imply you consent to it or that you think its the right long term solution. It is simply an interim solution until the matter can be decided by the courts. Send this letter and indicate clearly that in 1 week if you do not have suitable access, you will be filing an Emergency Motion in court, due to Denial of Access.
Step 4 is FILE IN COURT. File your application for divorce immediately. Probably the same day you send your letter demanding access. If you are first to file, you are called the APPLICANT. Your wife will then be called the RESPONDENT. You dont have to work out all the details to file your application. In particular you can leave off financial matters and file them later. Your immediate concern is custody and access to the children. You need to open a case, to bring Motions to court. DO NOT WORRY about trying to reconcile the marriage. FILE! If things are patched up later (and they almost never are) you can always withdraw the application for divorce. But if you wait to take legal action, you will damage your chances to have joint custody and shared residency of the children, and you cannot fix that later.
Step 5 is MOVE PROMPTLY. Every day that goes by strengthens your wifes claim that she is the natural primary parent, and you just dont care. Exactly 7 days after sending the letter demanding access, if you have no suitable response, file an EMERGENCY MOTION claiming Denial of Access. Normally you can get a court appearance within 7 days to hear this motion.
Step 6 is KEEP IT SHORT. In court, you have about 5 minutes to explain to the judge (or your lawyer does if you are represented) the issue. Keep it short and simple. Stick to facts. How many kids, and their ages. How long have you lived with your the kids. Where are the kids now. Have your RECORDS handy so you know exactly what day you were locked out,exactly how many attempts you made to arrange access, and so on. Submit a copy of your letter demanding access and indicate no response or inadequate response. Make it clear that you want to be with your kids, you are skilled at child care, you have an emotional bond with them, you have a place to spend time with them that is child friendly. Tell the judge what you want, lay out a schedule you request he make into an order, pending further deterimination by the court. Then hope for the best.
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If you want help, please feel free to contact me.
Eric Dormer
eric_dormer@DivorceSupportServices.ca
Ottawa, Ontario
If you found
this tip useful, or have additional information, or a different view,
PLEASE email me. I want to hear it. Email me at eric_dormer@DivorceSupportServices.ca