Custody / PR legal question...

[marlasinger]

hi! if anyone has any experience/advice/knowledge, I'd really really appreciate it.

the situation is this...

my husband and 2 stepchildren became PRs in January 2015. in our application we submitted the necessary notarized forms from the children's mother stating the children could move to Canada, & that she knew she may never see them again. she didn't object partly because she and my husband agreed they would let the kids decide where they wanted to live (she also just couldn't be bothered to try too hard). the kids chose Canada. my husband and his ex share joint custody legally, but agreed to something closer to a 60/40 split after the big move, as that's all a school schedule will really allow. side note: she's a terrible mother. emotionally abusive. absent. my husband has been what is technically viewed as the primary caregiver in all ways to the kids since they were born...

today we received two separate court summons from his ex. one asking for more child support because travelling to see the kids every other weekend is too expensive for her. (we meet her half way and gas in Canada is more $ for us. ) the other document was requesting full custody of JUST the younger child - age 11. the other is 15, but she's made it clear she doesn't want him because she doesn't like him. she's called him a "lost child" to her. whatever that means. like i said "lovely" mother.

i have a million questions. like can we use a Ontario family lawyer to deal with this even though it was filed through a NY state court? can we counter sue? can we request a continuance as the first court date is for may 14 & we just got the papers today - issued april 20? can we bring this to an Ontario court as this is where we all live except his ex? does that notarized form mean nothing - she let them leave? what are our options? please enlighten me if you can.

thanks!

 

[Ponga]

Sounds like speaking to a qualified lawyer ASAP would be a great idea.

While this forum is great for most questions, regarding Family Sponsorship...this one requires answers from a person (or persons) that know what they're talking about.

If I had to guess, I'd say that having it moved to a Canadian court would be a long shot.

The law firm that provides this website offers a free phone consultation. Click on the red and black CANADAVISA.com logo at the top left of the forum to see their contact info.

Good luck...to you all!

 

[canadianwoman]

You need a family lawyer for this.

But I can tell you a couple of things. One is that just because the physical custody is close to 50-50 does not mean she cannot ask for child support or more child support. If her expenses have gone up because of the move, the court may award her more money. If her income is much lower than your husband's, then she might get awarded more.
Also, she probably would not be awarded sole custody of the younger child, simply because the relationship they have worked out since separating is still working. If the child wanted to move back with his mother, the court will take that into consideration, but for a child younger than 12 his or her wishes are not the main factor. The court will look at the best interests of the child - and separating siblings and disrupting current living arrangements are not usually seen as being in the best interests of the child.

 

[marlasinger]

Thank you for your replies. We are definitely trying to find a family lawyer. It's proving rather difficult trying to figure out if a lawyer in Ontario can help us or not, given that these court summons come from New York state. If we have to use one from where he used to live, it makes things even harder and we have limited amount of time to present our side of the situation.

My husband is out of work since moving to Canada. I'm the only one providing a paycheque and we're totally strapped between gas money and the grocery bill quadrupling. If we have to pay her more money, it would make it impossible to properly provide for my family. I'm hoping you're right about the best interest of the child. Both of them are better off with my husband. He's the one who has always done and provided everything. Even when they had 50/50 and she lived down the street, she only saw them for a couple days a week because she couldn't take care of them for longer than that. as it is now, these two kids are best friends and do not want to be separated, nor do they want to live with their mother full time (during the school year - opposite of how it is since they moved here.) when we told them what was happening, they both started crying scared they would have to live with her. I'm not sure how to present this kind of information to the court, however.

I guess we'll see what happens...

 

[truesmile]

. . . it would make it impossible to properly provide for my family.

Don't let the courts hear this sort of thinking from your side, this is not in the best interests of the children.

 

[Sheps]

One thing you might want to keep in mind, is for child support purposes, there is a differentiation between custody (living arrangements) and visitation. If she is getting child support where your husband is the sole provider for them for living accommodations, you may want to investigate the implications on child support (technically, she should be providing support to your husband). Now, this is different then alimony which may or may not come into play here.

I would recommend a lawyer in NY State, as your summons are there. You will definitely want this dealt with as not dealing with it could be a huge problem in the future.

Couple things that could help:

What is child support?
Child support is financial support provided by the noncustodial parent. Child support includes
Cash payments (based on the parent's income and the needs of the child)
Health insurance for the child (medical support)
Payments for child care, and
Payments for reasonable health care costs that are not covered by health insurance.

Just based on that, if they live solely with your husband (and yourself) then your husband should not be paying child support to her as that would make him the custodial parent. Check out this link for NY State Child Support: https://www.childsupport.ny.gov/dcse/custodial_parent_info.html#whatis


More Info: http://www.jdbar.com/Articles/basic-child-support-2.html

The child support statute is written in terms of custodial and non custodial parent, and is silent with respect to joint custody. In Bast v Rossoff, the trial court agreed that statutory guidelines apply to joint custody arrangements, but held that the facts of the case required the court to determine child support outside of the statutory percentages and calculated child support under DRL 240 1-b(f). The Court of Appeals held that none of the mandatory steps under the child support statute can be waived by the court, and held that to comply with the statute, a calculation of guideline percentages must be determined, and only then can a deviation from the guidelines can be considered under DRL 240 1-b(f). The court determined that the parent who has the child the majority of the time will be considered the custodial parent for purposes of complying with DRL 240, and the parent who has the child the lesser amount of time is deemed the non custodial parent. This ruling is only to comply with the requirements of DRL 240, and has no bearing on any order of custody. The court in Bast also rejected any adjustment of child support based on the time the child spends with each parent, noting that the legislature considered this is a factor but rejected it when enacting DRL 240 and FCA 413.

And: http://singleparents.about.com/od/legalissues/a/joint_custody_child_support.htm


You would need to make a case for your husband to be deemed the "Custodial" parent. If it is truely a 60/40 split, then your case should be easy to prove.



Also, since your husband is out of work, I don't believe he actually has to pay any child support as child support in NY appears to be based on his annual adjusted income. If he has no income, it is in effect zero (it does not appear to be tied to your income in any way). I would definitely try and appeal the ruling and get the child-support cancelled.

TBH, it sounds like she is just a deadbeat mom trying to suck off the dad.

Google is your friend. Good luck with everything.

 

[Sheps]

Don't let the courts hear this sort of thinking from your side, this is not in the best interests of the children.

I don't agree with that, as he is (should be) the custodial parent, he shouldn't be paying any child support. She should in fact be paying child support to him, and this will not affect the best interests of the children. The judge would have to determine that by speaking with each child separately and coming to a determination as to whether or not the children would be better served with the mother or the father. Given that the mother effectively gave up her rights to care for the children by allowing them to come to Canada, I think the best interests of the children would probably be determined to be with the father.



As an aside, make sure you bring your PR information you got from her when she signed the forms, as proof that she has given up custodial care of the children. It should help your case.

 

[marlasinger]

*snip* TBH, it sounds like she is just a deadbeat mom trying to suck off the dad.

Google is your friend. Good luck with everything.

We found a New York lawyer today. The first court hearing regarding support only, is next Thursday. The 60/40 split is quite easy to prove, I would think, because of the school year. I'll mention all of this custodial parent information to the lawyer and see where he thinks we can take it. She does not get any alimony from my husband and the statue of limitations to ask for it has passed, as far as I'm able to Google. Currently she only receives $50 a month in child support - at the time of their divorce it was the lowest amount that could be granted and she accepted this because she is well aware she provides nothing for the children.

Calling her a deadbeat is offensive to deadbeats, but I digress...

I'm trying to stay unbiased, as much as possible, and look at all of this from a legal point of view for my husband's sake. He's scared he's going to lose them - his worst fear is that she'll have more access to them and they will have a damaging life because of it. She's not a well balanced, responsible person, to put it mildly. In terms of the best interest of the children, I don't see how separating them and removing them from this new home that they are happy in would be in their best interest. They chose to come to Canada and are scared they will have to leave. My biased point of view is that I don't see how a mother who has never bothered to be a mother before, should be rewarded for that and my husband punished when he's only ever given everything he has to these kids to keep them as safe as possible, mostly from her and the emotional abuse.

Thank you so much for putting that much time into your reply. I really appreciate it.

 

[marlasinger]

Don't let the courts hear this sort of thinking from your side, this is not in the best interests of the children.

I don't know that I would express this to a court. Perhaps a lawyer. And just here, as a personal fear.

 

[Sheps]

Don't let the fear get to you, just looking at it on the outside, I think you have a solid chance of getting everything just cancelled. If you turn around the custodial thing on her, there is the possibility that she may even drop the child support requirement all together out of fear that she would have to pay her husband.

Best of luck, and make sure the lawyer does a good job (and shows up, if on the very slim chance he doesn't, ask the judge for a continuance and more time to locate a lawyer, I wouldn't recommend going through the proceedings without one). If you want, you may have your lawyer contact her lawyer (or her directly) and mention the custodial thing and she may withdraw the case all together before you even appear in court.

 

[marlasinger]

+1
Thank you so much Sheps. You're a fantastic help. This information really set my husband's mind at ease.

Funny thing, she doesn't have a lawyer. She appears to have printed off these forms herself and filled them in by hand. Perhaps that will work in our favour, as it is starting to sound like perhaps my husband is entitled to a lot more than he ever realized. And wouldn't have known without her jumping into this minus a lawyer's advice.

 

[Sheps]

Yeah, she might not have a lawyer because most lawyers would probably tell her she does not have a case.

 

[marlasinger]

yes that's what our lawyer said as well. and that he wouldn't be surprised if the court appointed child lawyer, who will interview the kids, tells her to consider dropping her suit. he also said, as you did, that we're entitled to child support so we're going for it.

a $3000 retainer we have to pay to deal with this situation, all because she wants to hurt my husband & the good situation her kids are in out of jealousy. I'm astounded by the selfishness. truly.

 

[Sheps]

Honestly, I would consider taking the high road, just talk with her through your lawyer, let her know you are technically entitled to child support but you don't want to persue it.

I think it would be best for the children to at least have somewhat of a stable family situation instead of being involved in a prolonged legal argument.

IMO, I would see if she would be willing to drop everything for a written agreement that you have custody for child support and that you will not be Pursuing it. Might work out the best since there won't be a ugly fight with hurt feelings on either side.

I would definitely discuss all options with your lawyer. But just because your are entitled to child support, doesn't mean you should try and get it if it will put the person in a dire financial situation

 

[marlasinger]

*snip* let her know you are technically entitled to child support but you don't want to pursue it.

IMO, I would see if she would be willing to drop everything for a written agreement that you have custody for child support and that you will not be Pursuing it.

But just because your are entitled to child support, doesn't mean you should try and get it if it will put the person in a dire financial situation

I appreciate this option and I'll mention it to my husband for when he speaks to our lawyer next. It's obvious to us that she has no idea of what she's gotten herself into. That she filed these papers like she's entitled to child support for herself, not for her children. Because honestly, I mean truly, she provides nothing for them but food when they are with her. She obviously wasn't advised that the sole provider/custodial parent isn't technically supposed to give her any money at all. I think she's going to fall out of her chair when it hits her. So saying give us our terms of custody and we won't ask for child support might actually work out.

Something else you might have some advice for - there is a 5 hour drive between the kids and their mother. So far my husband has been driving them halfway every other friday and then again sunday to pick them up. he's been doing this to be nice. would it be fine for us to stop doing this until custody is sorted out? could we say, "you can see the kids but you'll have to come and pick them up yourself"? my thinking is, she allowed them to move to Canada, signed the forms that say she may never see them again - so we are within our rights. and it's not like we can afford the extra gas money since we've been forced to retain a lawyer. so we wouldn't be saying you can't see the kids, we'd be putting it on her to take responsibility for her time with them, instead of relying on my husband/my money. on the flip side, is it still her responsibility to return the children on the sunday or could she say "I'm keeping them until you come get them"? I've read about something called the Hague Abduction Convention - her not bringing them back, effectively removing them from their resident country and taking them out of school without my husband's permission, might constitute a form of abduction? Not that I want to go around ready to accuse that, but if that were a thing in that possible situation, it would be good to inform her of it so she doesn't get herself into more trouble. as far as i know she doesn't have acceptable ID to get into Canada, so until she did there actually would be no way for her to come and get them. in my mind, that just demonstrates her incompetence, so to speak - that she wouldn't have worked out a way prior, or even any time since january, to secure a way into the country where she let her children move. like what if one of them went into the hospital or something...anyway...thoughts on that?

thank you again. I've never had to deal with anything like this before in my 29 years. So it's been enlightening and reassuring.