Is who files first important?

[Halfasianmomma]

In light of my STBX's recent threats to take me to court, to charge my father with child abuse of DSS, and to demand that he be supervised when caring for DD, I'm wondering if it matters who files for custody/divorce first.

I'll be talking to my lawyer tomorrow morning of course, but I was just wondering what your experience was with regards to this...

So far, I just wanted to work this out in mediation, but if we have to go to court, I'll go to court.

[NolaRiordan]

I don't know really. My lawyer told me it was to your advantage to file first. He said the person who files first sets the terms, and that forces the other person to have to react to what you fist put out. So they are in the position to have to make the case for whatever they want that they claim is not reasonable on your part. In my case it did seem to work that way to some extent. I filed first and despite him threatening a number of things he never actually followed through on too many of them.

[ProtoLawyer]

There can be tactical advantages as NolaRiordan suggested, but generally speaking, there are no legal advantages to filing first. I don't know of any state that weighs who files when as a factor.

[LoveOhm]

I agree with NolaRiordan I spent a great deal of time effort and thought to what was best for my dd, myself and to some extent her dad. I filed first and the burden was then on him to respond with a different version / reasons why what I stated was not in the best interest......

He threaten several times of filing and never did, once I did file his "threats" had no merit (they too were just another attempt for him to try to bully and control me and the situation to his liking). My ex has not yet responded to my filing and I doubt he will since he is still avoiding service.

[Halfasianmomma]

Well, after a very reassuring conversation with my lawyer, it seems that here in Quebec, it doesn't really matter who files first. In fact, we can start legal proceedings when/if STBX starts them. Also, she stated that if he were to serve me with custody papers, we'd have a bit of an advantage on our side because I am still cooperating with mediation, attempting to resolve this amicably, I have de facto custody of my child since I left and I have been her primary caregiver since birth. It doesn't guarantee "winning", but it puts a different spin on things.

So the advice given to me was: go to this 3rd mediation session with my proposed parenting plan, see if STBX even shows. If he doesn't, then I begin legal proceedings. If he shows and remains inflexible, then we begin legal proceedings. If he shows and we can work on things, then yay for everyone involved.

The thing is, *eventually* we will need to file, either individually or together, because we want to finalize this divorce. I guess it's just a question of doing it now or doing it later.

[lilyka]

it was definitely to my advantage to file first. I don't know if this is how it always goes but in my particular cicumstance it did. My xh had already bought himself a house, funrnished it (but nothing for the kids) and had a girlfriend. he was out of town when I filed so I retained the family home and the children and thats the way things stayed until the divorce was finalized. if the divorce had been taking a particularly long time we could have had custody and support hearings in the mean time. So at the very least what ever is in place when he is served is what will be in place until a hearing can be scheduled.

[NolaRiordan]

What lilyka says is exactly why the person who moves out needs to be really careful. If one party moves out and the other party stays in the marital residence and there's nothing in place before that, the court is definitely going to be in favor of custody for the person in the marital residence for the sake of the stability of the kids.

[Halfasianmomma]

In my case though, STBX already has rented out DD's room to some guy from his work, and so there's no set space for her to sleep there anymore. My lawyer tells me this is very much in my favour in terms of delaying overnight visitation.