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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 03-17-2011, 08:12 PM
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Default Defacto custody and relocation

Hi everyone,

I'm going to see a lawyer about this next week but I'm quite anxious and I would appreciate your opinions on my situation.

I have two children (daughter, 12 and son, 6) from two relationships; my son's father and I separated in 2009. Prior to that the four of us lived together for 5 years (my kids, myself, and my son's dad). Both dads and I live in the same city.
The relationship with my son's dad was abusive, I left him and stayed in the shelter for a few months before finding a place with community housing, and this is where my kids and I have lived since. There is no documentation whatsoever on custody and access arrangements, amounts of child support etc., everyone agreed verbally and no one bothered to go through the system. I'm the kids' primary caregiver and decision maker, the dads have access to them whenever they want, and they pay me some child support. I figured it would be better for me not to start a war by dragging them through courts.

Now here is the problem. I'm a student, and I have an internship coming up as a part of my program. The internship is 1 year long and it can be anywhere in Ontario (determined by a lottery). I have talked to the dads about my possible relocation and they are NOT OK with me bringing the kids along, because their access to them will be severely limited if we relocate (one of the dads cannot drive due to a medical condition). They want the kids to stay. Now, if the kids stay with their dads and I go by myself, it isn't ideal either, because:

- the fathers don't have proper accommodations for them (one is living with his mom/friends; the other one has a tiny bachelor)
- the children would have to be separated from each other and me, the primary caregiver
- if I move away for a year, I have to give up my community housing spot which means I will be homeless when I come back, there is no way I can afford market rent being a student and a single mom of two
- if I leave them with their dads, I feel like the dads can just go and get a custody behind my back, or use the fact that I left against me if there is a custody dispute in the future.

So it looks like it is in everyone's best interest if I stay where I am and do not relocate.

Now, the questions:
1. What will happen if I bring the kids with me against their dads' will? Would I be breaking the law? (not that I want to do that, I just want to know)
2. If I leave the kids with their dads, would it jeopardize me getting sole custody in the future if I decide to?
3. My program's director told me that they could potentially make an exception if there is a custody arrangement involved which prohibits me to leave the current city of residence. They would have to see a legal document(s) proving that I cannot move anywhere. What kind of document would that be? How do I get it?
4. Does my program have to accommodate me based on this document or is it up to them?
5. Would this document come back to bite me in the butt later on, if I do want to move? Can this document describe a temporary arrangement? For example, 'So and so cannot leave the city X until the end of her program'? (that's another 2.5 years).

Thank you so very much for reading. I'm sort of new to this and worried sick.
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Old 03-17-2011, 09:57 PM
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Nothing you describe is "everyone's best interest if I stay where I am". There is nothing wrong with you making choices for your own best interest, but you are not allowing the others involved to make their own choices.

The father's can obtain different accomodation if they need to, and if they want to have their children living with them. There is no obvious reason, from anything you have stated, that the fathers cannot maintain close contact while you are away.

Although it is hard to imagine, think what would be the situation if you died or were incapacitated? The kids would live with their dads and life would go on.

Custody can be challenged at any time by anyone, but of course they have to show reason. If the children ended up doing well with the fathers and they wanted to stay, the fathers could seek to keep custody. If you wanted to fight that you would be doing it for yourself, the children could thrive and be happy either way.

This is not to say the fathers would be awesome parents or that they want to raise the children full-time. I don't know them and have no idea, but nothing in what you describe shows that hell would freeze over if they had custody.

All this is to say that yes, if the children live with them for a year, it could work out well and they could seek to keep custody and they would be able to make a strong case.

The fathers can stop you from moving the children out of the city, they could make a strong case if they choose to. Your ability to move depends on their acceptance.

You can draw up a custody agreement that stipulates mobility and have this signed by all parties, by independant legal counsel and have it notaraized and registered with the courts. This would be binding on you and them.

Some theoretical future date when you sought to move out of the city, they could stop you taking the children then as much as now. This is really something you need to discuss with them.
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Old 03-17-2011, 10:30 PM
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Nothing you describe is "everyone's best interest if I stay where I am". There is nothing wrong with you making choices for your own best interest, but you are not allowing the others involved to make their own choices.


I disagree. If it was in the fathers' best interest to live with the children, they would have: 1. Said so. 2. Made an attempt to inquire about a sole/shared arrangement of some kind. It's been a while since we separated. They did neither, they have been fine with me doing the full time parenting. Therefore, I assume that they are not interested in having them full time. They don't want me to move anywhere, but they don't want me to quit the full-time parenting either, unless I absolutely have to (which would be if I were dead, for example).

The kids, assuming that they have the power to decide for themselves, would not want to be separated from each other, or from me, wouldn't want to change homes or have a new school.

So it does seem to be in everyone's best interest to continue with the current arrangement.
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Old 03-17-2011, 10:38 PM
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You can draw up a custody agreement that stipulates mobility and have this signed by all parties, by independant legal counsel and have it notaraized and registered with the courts. This would be binding on you and them.

Would you know if this agreement is something that has to be accommodated legally by, let's say, an employer or a post secondary institution?
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Old 03-18-2011, 01:54 AM
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Quote:
Originally Posted by Zhoozhelitsa View Post
The kids, assuming that they have the power to decide for themselves, would not want to be separated from each other, or from me, wouldn't want to change homes or have a new school.
Sooooo....it's ok for the children to change homes when it benefits you and you are ok with seperating them from their dads, but not you.

Got it.
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Old 03-18-2011, 02:29 AM
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Originally Posted by blinkandimgone View Post
Sooooo....it's ok for the children to change homes when it benefits you and you are ok with seperating them from their dads, but not you.

Got it.
I don't think you did, Blinkie.

I don't want for them to change homes. My goal is to stay with them at the place we are at right now and have everything continue the way it is. My internship relocation is not voluntary; my school is sending me there. If I don't go, good bye, good job, and sorry kids, we are stuck in the projects with no money for your RESPs.That's why I'm trying to figure out a way to convince my school that I can't relocate b/c of the situation, and I need a legal document of some sort.

And if I have to relocate, I have to pick a lesser evil, which in this case would be leaving them with dads who haven't shown interest in being full time parents, although they had every chance to. Can you see why I have concerns about leaving my children with dads who haven't been interested in making decisions about the kids' lives? who don't have proper places to live? who would separate them although they have been growing up as siblings?
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Old 03-18-2011, 09:07 AM
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The dads are uninterested because you haven't discussed the possible move with them and put options on the table.

While you say you don't want to move now for your internship, you earlier said:
Quote:
5. Would this document come back to bite me in the butt later on, if I do want to move? Can this document describe a temporary arrangement? For example, 'So and so cannot leave the city X until the end of her program'? (that's another 2.5 years).
So it's ok for you to move when you feel like it, away from the fathers, this is your stated goal.

Did you not understand the nature of your course when you signed up?

To answer your last question, if you have a signed custody agreement this has nothing directly to do with your school. It is binding on you in your relationship with the children and the fathers. No one can prevent YOU from moving anywhere, but the fathers can prevent the children from being moved. Nothing is binding on the school unless they sign an agreement as well. But what you have stated is that the school informed you that if you have mobility limitations due to custody issues, your internship would be within the area. That was a straightforward statement, what you need to do is get this policy in writing.

Stop and look at what you are asking for here. You want to move the children away from their fathers when ever you want, now and in the future. You don't want them to have any say. But you are considering signing a custudy agreement to stay in the city to avoid moving for your internship, but you don't want it to limit your mobility in the future? All of this is about you and your control, not about the children.

It's fine to have a goal to get out of the "projects" but that doesn't give you an excuse to do whatever you want whenever you want.
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Old 03-20-2011, 12:46 PM
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Hold on, let me clarify this again.

1. I have discussed the move with them. They are not ok with it. They want the kids to stay. At the same time, they do not want to be their primary caregivers. I also have concerns about them being primary caregivers (lack of housing and lack of overall initaitive to parent them full-time since we've separated). Now they want ME to come up with a solution, as in 'We want the kids close by but we don't want to be too involved in their care. We don't want to wake up early and take them to the old school. We don't want to pay more for a bigger place. We don't want to negotiate family-friendly hours with our employers. You figure it out'. I'm not saying they are bad fathers, they just don't want to deal with the logistics of having to care for a child full-time. They only have them on alternative weekends and are not involved in much of the decison making (voluntarily so). Say, they don't care to ask the school for a copy of their report cards, or they don't ask the family doctor whether my childs' health problem has changed etc.

I want to know primarily what MY options are so that I can put them on the table, and they can look into theirs themselves. I'm not restricting their rights to seek legal advice to figure out what their options are, they are fully grown, mentally capable adults and all that.

2. I do not want to move (kids or not) for my internship, I don't understand why you think that. I may HAVE to move after the program is over in order to get a job. I don't want to move just for the heck of it, but I do want to move if there are no job openings in my city and there is one outside, within the province of Ontario. My field is very specific and it pays quite well; and the market isn't bottomless at the place I live right now. Having a job in my case would mean pulling my kids out of poverty, since their fathers are not providing for anything above the basic survival needs. Would you consider such a move to be in the best interest of a child? If the kids' overall quality of life increases significantly but they will see their dads less as a result (say, once a month vs every other weekend), is this an acceptable trade-off?

3. I obviously knew the program's requirements; I wasn't a single mom at the time when it started. I didn't become a single mom by choice exactly, either. You may argue that everything is a choice; in my case, living with a yelling, physically abrasive spouse wasn't a choice. I believe it wasn't good for the children, either.

4. I don't understand why you think I want to move the kids away from their fathers. I asked, what will happen if I do move them without consent, b/c I want to know, as a part of the 'know my options' quest. Why assume?

My primary question was, how do I get a paper allowing me to stay where I am for this damn internship, so that I DON'T have to move and have the kids change their school, routine etc.? Because regardless of whether I move for the internship with them or without them, they will lose their primary residence, which is a major disruption. I'm trying to find a way to stay and keep things the way they are, not move. I believe this would be in the kids' best interest.

I may have not made myself clear about what will happen after the school is over. Again, if I get a well-paying job outside of my current place of residence, I will want to move. It's not just me who is going to get out of the projects as a result. Whether moving them with me is in their best interest is questionable... what will the court look at?

I think (a speculation) that if I went to the court and ask the judge whether it was ok for me to move them he'd be looking at: a mom who's cared for them since birth full-time AND wants to continue to do so AND will have the money to do so if she moves vs. their dads who are partially involved in their lives BUT don't want them full time AND accepted the de facto sole custody responsibilities of the mom... what would the judge say? What's the lesser evil for the kids here?

I think (this is another speculation) that the fathers would agree if I moved them for a job if it isn't too far away. This way it's less of a burden for them financially. However, if I have the don't go-anywhere agreement in place right now which doesn't have a time limit attached to it, isn't it going to make it 'permanent'? Or can the dads and I re-negotiate a new agreement which will supercede the old one once circumstances change?

5. I don't have any paperwork pertaining to our separation AT ALL. Nothing whatsoever. So I'm looking to get a custody agreement maybe (not sure), hence the lawyer next week. I was wondering about the school accommodating it because I know that universities have a duty to accommodate students who fall under the Ontario Human Rights Code categories, and Family Status is stipulated in the Code. Let's say, if it was my employer, they would have to accommodate a mobility restriction clause unless it's undue hardship for the employer, not sure if universities abide by the same rule.

Again, I'm not sure why whatever I'm saying is coming across as selfish. I think I'm figuring out the best way for my kids to be. Wanting them to have a better life, what's wrong with that?
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Old 03-20-2011, 12:58 PM
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Quote:
Originally Posted by iceberg View Post
Moving away two kids from two fathers? That would be funny if it wasn't sad and I don't see it happening unless the dads agree to it. On the other hand it is not a good idea to separate the kids from each other and from you especially if the dads are "uninterested". If it was me I would target the jobs in your city and have the dads support the kids as well as yourself.
Hm, well that would be ideal but the dads are poor and I'm 2.5 years away from a job. Hopefully, it will be in my city. But it's not guaranteed.

Unless you mean quit school and pick up whatever job comes my way but that would be unreasonable given I'm half way through this program.
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Old 03-20-2011, 01:00 PM
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Your kids rights to a relationship with their father trumps your intership, job or whatever reason you may have for wanting to move them away from their fathers. Regardless of whether or not you have an agreement in place, they can file amotion to block moving the children beyond XX KM away from their dads. If you choose to move without their consent they can go to court and ask the children be returned to their original city of residence which will most likely be granted.

As far as your internship and how to get something that says you can't move for it, I don't know that anyone here can help you with that. Your best bet is to talk to the school to find out what your options are. You maybe faced with the choice of moving without your children to continue or giving up the internship and pursuing something else.
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