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Old 08-09-2011, 11:33 AM
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Question "Mobility restriction"?

Not too familiar with how mobility is affected when a child is involved, so would appreciate any and all input from those who know more/better ...

The situation: One young child (under 5) residing with CP. CP has resided with parents for last 10 years or so, in a house owned by said parents. NCP was forced to leave "matrimonial home" (don't know what to call it in such a situation?) owned by CP's parents. Ugly and high conflict separation/divorce in process. CP has threatened NCP numerous times with: "I'm just going to move away and you'll never ever see your child again!". Unbeknownst to NCP and finding out after the fact, CP's parents have put the house on the market. CP is refusing to provide any information on whether and where/when they intend to move, etc.

What are NCP's legal recourses, if any, to prevent CP from just moving away and "disappearing" with the child once the house sells?
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Old 08-09-2011, 11:57 AM
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The NCP, upon finding out about impending sale of the child's residence, should send a formal letter (either by lawyer or if by yourself via registered mail) requesting details on the new location of the child's residence with a responce timeline as soon as reasonably possible (about 2-3 would be reasonable) or, in the event of a quick sale, immediately upon notification of the house being sold.

As a parent the NCP is entitled to know where their child is going to reside and be provided contact details in cases of emergency and for maintaining the relationship. If the NCP has joint custody, they are also entitled to input in any changes to the childs education (ie. school). If the CP has sole, the NCP is still entitled to know where their child lives or is going to live.

If the CP advises that they plan on moving a substantial distance, thus creating issues with the NCP's ability to exercise their parenting time, the NCP should notify the CP that they do not consent from removing the child from their familiar location, and to any changes that the CP's move would have on the NCP's ability to exercise their parenting time. You may have to mediate this, as there are a few remedies that are normal in this case, but they need to be agreed to prior to the change, otherwise they are already gone and have little incentive to negotiate.

CP is not entitled to up and leave without providing the NCP with reasonable notice of the move and an address and phone number for the child. Should the CP up at leave without providing these details, effectively cutting off the NCP from being able to exercise their parenting time, the NCP can file an emergency motion to have the child returned to their familiar jurisdiction.
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Old 08-09-2011, 12:10 PM
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Hammerdad, thank you so much for a very concise and clear write-up!!!

NCP is suspecting that CP may have already moved out and to elsewhere, since the house has been on the market for quite some time. As CP is absolutely refusing to provide any information whatsoever on their whereabouts and the situation with the sale of the house, if CP does successfully somehow move away and then simply cut off all communications with NCP, how would an emergency motion filed by the NCP help???

Does notice of the motion need to be served on the CP, and how, if NCP does not know where CP has gone to? If successful at motion heard ex parte by the NCP, how can the return of the child be enforced if the whereabouts are unknown???
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Old 08-09-2011, 12:35 PM
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If the CP moves without providing any contact details to the NCP and does not continue to facilitate the NCP's parenting time (pretty much does a mid-night move and cuts off the NCP) the NCP can file an emergency motion to have the child returned.

An emergency motion does not require service to the other side.

Another matter to consider is, what does the agreement/court order provide regarding mobility? Is there a restriction or provision in the order/agreement providing the CP cannot move Xkm's away? What about notice? If there are such clauses and the CP attempts to move, they could be found in contempt (you would have to file a motion for contempt though).

Should the court require service, you would first attempt to serve the motion (for contempt or for a temporary restraining order preventing the ex from moving) at their last known address. Failing that, you can then request that the court allow service via local newspaper. If the CP avoids service, the court can continue to trial ex-parte (without them).

Should the CP already have left, and the courts order that the child be returned to their familiar location via emergency motion, law enforcement can then be brought into the fold. The child can be apprehended by the police (I know, not appealling. But what is worse, police picking up the kid or the NCP never seeing their child again?) and returned to either a CAS house or the NCP until a court can determine where the child should reside. Where would depend on whether or not the NCP requests that the child be put in their temporary custody in the motion should the CP refuse to return to the child's familiar location.
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Old 08-09-2011, 12:51 PM
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Just a note. The CP is entitled to move where ever they want. However, they cannot relocate the child without consent of the NCP.

The CP cannot unilaterally make a decision that would negatively affect the NCP's ability to exercise their parenting time or contact with the child. If there is an existing court order, review it to determine what, if any, provisions exist for mobility. If there are no clauses in the agreement/order, the NCP must assert their position about relocating the child as soon as possible. It should be done in writing via registered mail and via email to the CP as further evidence of the NCP's attempt to notify the CP.

Should the NCP not take action and the CP moves, any delay could create status quo and affect the NCP's ability to get a satisfactory remedy.
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Old 08-09-2011, 01:04 PM
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Hammerdad, thanks so much again for very clear explanations, especially distinguishing between the CP's entitlement to move and the NCP to not have the child removed an unreasonable distance. Seems to me like in such a situation, time, and resolve, is of the essence. I guess one can always dream of people just getting along and being fair to each other for the sake of the child ...
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Old 08-09-2011, 02:44 PM
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Also know that most of my points (outside of the entitlement to generally know where the child is residing) relate to issues that the ex's move creates in the NCP's ability to exercise their parenting time.

If they move, but locally and/or drive to the prescribed exchange point (where their move was outside the current town/city) AND provide contact details, your arguments in any motion become moot (outside of proper notice, but a court would give the CP a slap on the wrist and tell them to play nice). It is only where the CP's move impacts the NCP's parenting time and where they do not provide contact details. And your remedy will differ depending on what the ex does. If they move across the country, you file to have the child returned to their familiar location. If they move 30 minutes away, it may be a contempt, but really...so long as there is no change in parenting time or affect on parenting time, it is a non-starter. If they move 4 hours away, it may be you file a motion to return and/or change in custody and/or amend the current order to provide for new provisions on:

who drives - if NCP, what credit are they getting to offset the cost.

if NCP loses time (mid-week for instance) what will the NCP get in return (more weekends, long summer breaks etc)

cost of communication - cause the CP to purchase a webcam and DL skype so NCP doesn't run up a phone bill trying to maintain communication.

The court may order a number of different remedies, but you have to ask in order to get them.

Where they have joint custody, you could have reasons to file for contempt as the CP would have made a unilateral decision where they were not entitled to (change of school). But again, you would first have to look at the schools and their ratings as the new school may be better and it is in the child's best interests to attend there.
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Old 08-09-2011, 03:18 PM
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Hammerdad, i love and appreciate your candid and fact-based posts/responses!

Sadly, there is no existing court order or agreement in effect. As far as i know/understand, CP is using the child as a bargaining chip and "disappearing" with the child has long been a threat waved around many times now as an action out of spite when pressed by the NCP to negotiate a fair agreement as well as provide disclosure for all claims to date. Access has been and continues to be denied to the NCP. Like you said, it's up to the NCP to take timely and firm action to ensure rights are protected and an unfavourable status quo is not unwittingly established.
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Old 08-09-2011, 03:35 PM
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Without a court order (if they were married) each parent has defacto joint custody.

Where you have a difficult ex who is unwilling to negotiate or mediate in good faith, you may be stuck filing with the courts. It makes no sense trying to cooperate with someone who is unwilling to recipricate. You may as will be pissing into the wind telling yourself it is raining.

Also, I hope the NCP has limited communications with the CP to email and text. Because a court will not look favourably upon the CP when provided with evidence that the CP is threatening to move the child and disrupt the NCP's parenting time, notwithstanding whether it is a legitimate threat of flight or used as a means of manipulation. Courts will heavily frown on this tactic.
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Old 08-09-2011, 03:55 PM
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Unfortunately once NCP started limiting communications to email and written letters, CP immediately clammed up on specifically stating anything that could be used to prove intent on any of the outstanding issues (eg. custody and access), upon receiving "legal advice". Verbal threats and statements of intent were freely flung about before that, but once NCP started to insist on everything in writing especially with regards to both parties' positions and negotiating an acceptable outcome, CP simply ignored all requests for information and refused to make any statements about intentions or plans, except for demands. I think NCP could still collect and compile correspondence to date and build an argument based on "patterns" in what and how communications have been conducted (or not, as might be the case), but it's definitely an uphill battle at this point. CP is already acting like having de facto sole custody. But yes, sometimes court is the only way to go ...

Actually, i find myself wondering how lawyers can, in good conscience, advise clients (in CP's case) on how to "successfully" carry out things like deny the other parent's rights and to not "get caught" or get called out for it ... just makes me grit my teeth and shake my head ...
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