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Custody
- What if my husband kidnaps the children and takes them
to another country?
- Can he take the children away from me because I have no
job and live in a shelter?
- What happens if I take the children from home with me
to live in a shelter for battered women?
- How can I be accused of abducting my own children?
- How can I show that I felt the children or I were in danger
of being harmed?
- Can I get custody of my children if I am sponsored?
- Can I get custody if I can not speak the language?
- How can he apply for custody of the children when he is
threatening to harm them?
- What can I do in order to get custody of my children?
- How will I be able to prove to the court that abuse took
place when no one else ever saw it?
- Do we have to sort out custody by fighting in court?
- How can I find a lawyer to help me?
- Do I need a lot of money for a lawyer in order to get
custody of my children?
- How long will it take to get an order for custody?
- What can I do if my husband or partner breaks the custody
order?
- Do I have to let him see the children even though he has
threatened to kidnap them?
- What if my husband kidnaps the children and takes them
to another province?
- He might make a complaint to the police that you have abducted the children.
- He might start a legal action for custody of the children.
- Lawyers are listed in the Yellow Pages. Look for one who specializes in family law.
- Ask your friends if they can recommend a person or a law firm.
- The Law Society of your province will have a list of lawyers in your area who practice family law.
- There may be agencies that can help you find a lawyer, for example, the Protective Restraining Order Project in Edmonton.
- Legal Aid can also refer you to a lawyer practicing in family law.
- No access is given, or
- Any visits are supervised by someone like a social worker, or
- Times and places are specified when visits can take place.
Custody is a legal term meaning the care and control of a child. It means having the right to make all of the major decisions about and for a child. Usually in Canada, it means having the child live on a day-to-day basis with the person with custody, but not always. For more information about custody, see Canadian Legal FAQs.
The following are frequently asked questions about custody.
What if my husband kidnaps the children and takes them to
another country? (c15 October 1998)
If the children have been taken abroad it may be hard to bring them back.
It depends which country they are in. Some countries have signed an international
treaty and will recognize and enforce custody orders made by courts in other
countries if the children are not too settled or will not be returning to
a harmful situation.
If your partner asks the courts for custody of the children or if he contests
an action that you start, a court will make the final decision about where
the children should be. The court will take many things into account when
making this decision, but the guiding principle is what is best for the
children.
Of course it is hard for the children to be living in a shelter away from
their home and especially difficult if you have no income. If you have left
an abusive situation, however, and you can show that the children and you
were in danger of being harmed, the court is not likely to put the children
at risk by placing them back in the home.
There are two possible courses of action that your husband or partner
might take using criminal law or family law.
The law says that where there is no custody order in existence, it is
an offence for one parent to take children under fourteen years of age from
the other parent with the plan of keeping them away from him. If you hide
the children so that they are not available to their father, there is a
possibility that you will be charged.
Removing the children could also be an offence if it is against the terms
of a custody agreement that already exists.
There is, however, a defence to any possible criminal charge. If you can
show that you took the children away because the children or you were in
immediate danger of being harmed then you may be able to resist criminal
charges. Even if you can show that you honestly believed such a danger existed,
you can likely oppose charges.
It is extremely important to have proof to back your claim. If you are
in an abusive situation, try to make some plans before you leave. Keep a
record of when and how you or the children are abused. If you or the children
are seeing counsellors because of the abuse, keep records of this also.
It will also be useful if there are any witnesses to the abuse. Even though
you may think it is taking place in private, your friends and family may
notice more than you think. Try talking to them to see if they can help.
Whenever a court is considering a custody situation, the test is always
what is in the best interests of the child. In a sponsorship situation,
the court will look at the parenting capacity of the applicants. It may
be difficult if the parent applying for custody is on a departure notice
and the other parent opposes the application.
Again the question for the court is what is best for the child in any
particular case. If the parent can not function in the community to meet
the needs of the child because of language difficulties, that may be one
factor the court will consider in making its decision. However, the courts
will not place children in a situation where they will be at risk, even
if the only other alternative is to stay with a parent who does not speak
English.
Even when parents separate physically, they both still have equal custody
rights to their children until a court order says differently.
It is very important that you deal with the issue of custody of your children
immediately. This applies whether you take the children with you or whether
you have to leave them behind with your husband or partner.
The only way that you can legally obtain custody or your children is by
asking for an order from a court that deals with family law. It is possible
for you to do this by yourself, but in reality it will be quicker and easier
for you to get advice and assistance from a lawyer or from an agency that
specializes in family matters.
First, tell your lawyer everything that occurred so that he or she can
bring the facts to the attention of the court.
In order for you to remember everything, try making some detailed notes
as soon as you can. Make a note of every time your partner abused you or
harassed you. Even though the incidents took place in private, your friends
and family may have noticed more than you think and could be helpful witnesses.
Try to remember times that you may have got medical help or counselling
as the hospital, or crisis centre, or counsellor will have records.
Remember that the courts will need good reasons to give sole custody to
one parent.
It is always possible for parents to agree that their children should
live with just one parent. The agreement can be informal but usually the
agreements are put before the courts and made into court orders. If custody
can be worked out by agreement and the court approves of the arrangement,
there is no need for arguments and fighting in court. The court will simply
approve the agreement made by the parents.
In a situation where the parents cannot agree about custody arrangements
or where one party fears for the safety of the children, it is necessary
to persuade the court to make the appropriate order.
You need a lawyer who practices in the area of family law. There are several
ways that you can find a lawyer.
There are ways to get legal assistance when you have limited finances.
First, you may be eligible for Legal Aid. Legal Aid is a fund that will
subsidize your legal costs depending upon how much money and property you
have.
Second, you can discuss payment with your lawyer. He or she may be willing
to charge a lower fee or let you pay by installments.
If you are planning to leave an abusive situation, it is a good idea to
put some money in a secret emergency fund that you can use when you leave.
Although it can take between two months and two years to get a final custody
order, the courts can grant an interim custody order quickly. For example,
if you saw your lawyer one afternoon, he or she could apply for the order
the next morning. An interim custody order can give you temporary sole custody
until the matter is finally resolved.
The parent who does not have custody of the children is normally given
access or visiting rights by the court. The view of the courts is that normally
every child has the right to see and spend time with both parents. Exceptions
can be made when it is likely that the child will face physical or emotional
harm.
If you fear for the safety of your children you will have to tell your
lawyer so that he or she can ask the court that special terms be written
into the custody order. Examples of terms that could be requested are:
It is very important that the terms of the order be specific and very
clear. This is so that there is no confusion if the order is broken and
it has to be enforced.
Can he take the children away from me because I have no job and live in
a shelter? (c6 October, 1998)
What happens if I take the children from home with me to live in a shelter
for battered women? (c1 October , 1998)
How can I be accused of abducting my own children? (c2 October, 1998)
How can I show that I felt the children or I were in danger of being harmed?
(c3 October, 1998)
Can I get custody of my children if I am sponsored?
Can I get custody if I can not speak the language? (updated
May 2002)
How can he apply for custody of the children when he is threatening to
harm them? (c4 October, 1998)
What can I do in order to get custody of my children? (c5 October,
1998)
How will I be able to prove to the court that abuse took place when no
one else ever saw it? (c7 October, 1998)
Do we have to sort out custody by fighting in court? (c8 October, 1998)
How can I find a lawyer to help me? (c9 October, 1998)
Do I need a lot of money for a lawyer in order to get custody of my children?
(c10 October, 1998 updated May 2002)
How long will it take to get an order for custody? (c11 October, 1998)
Do I have to let him see the children even though he has threatened to
kidnap them? (c12 October, 1998)
