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Forced change of custody?

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  • Forced change of custody?

    Is it a FACT (or a given rather) that if I (as custodial parent) want to relocate abroad with the kids I would have to relinquish "permanent sole custody" status I was granted by court?
    Does it matter how long I have had the status?

    We have a high conflict divorce, ex has standard access, ex's lawyer simly informed me by email that client opposes the move but hasn't said their wishes.
    Is it assumed that when ex opposes a move overseas it means ex wants CUSTODY?
    Can ex simply be wanting change of residence? (doesn't make sense to me if I am relocating overseas and keep custody)
    Can I agree to ex living with the kids (since ex opposes move) and assume issue of custody can remain untouched?

    Not sure of various scenarios & possibilities.

    Thanks for your enormous help.

  • #2

    This is a link to a case where the move was allowed with provision to vary access in favour of the non custodial parent.

    The onus is on the non-custodial parent to show that the move would not be in the best interests of the children and that it would interfere with the rights of the children to maintain as much contact as possible with both parents. See below quote.

    The non‑custodial parent bears the onus of showing that the proposed change of residence will be detrimental to the best interests of the child to the extent that custody should be varied or, exceptionally, where there is cogent evidence that the child’s best interests could not in any reasonable way be otherwise accommodated, that the child should remain in the jurisdiction. The proposed change of residence of the child by the custodial parent will not justify a variation in custody unless the non‑custodial parent adduces cogent evidence that the child’s relocation with the custodial parent will prejudice the child’s best interests and, further, that the quality of the non‑custodial parent’s relationship with the child is of such importance to the child’s best interests that prohibiting the change of residence will not cause detriment to the child that is comparable to or greater than that caused by an order to vary custody. Where there is an agreement or court order explicitly restricting the child’s change of residence, the onus should shift to the custodial parent to establish that the decision to relocate is not made in order to undermine the access rights of the non‑custodial parent and that he or she is willing to make arrangements with the non‑custodial parent to restructure access, when appropriate, in light of the change of residence of the child.

    Every case is unique and is judged on their own merit and the relinquishment of custody is NOT automatic by any means however, it has been done in many cases.


    • #3
      Thanks a million for the reply!
      Still curious, is there a difference btwn "sole permanent custody" and "legal custody"?



      • #4
        I personally believe, one could be a GREAT risk of losing custody in such a move, if such a move were to be contested as such. It is a major change of circumstances and I would presume if the non custodial parent were looking at getting sole custody this would be an excellent opportunity, and likely sucessful.

        You may move whenever, where ever you wish, it is part of your rights and freedoms, your child however may not simply up and move with you with out the consent of the noncustodial parent, he may bring forth an application to stop this and I would imagine this could be dragged on for a lenghtly period of time. In my own humble opinion I believe if he truly wanted custody he would prevail in having the child remain here. The question is......does he want this? If so...well good luck.


        • #5
          Further to the above, there is the option of "block access".
          When consistant regular monthly access is not possible because of the distance the non-custodial parent may seek "block access". And this could include the entire summer months, extended time over Xmas etc.

          In this case the mother moved first, then there was an application to vary access to block access.
          The mother was held responsible for all costs associated to facilitate this access.
          And if for what ever reason could not do so, then the judge would change custody to the father.

          Every case is different, and as such various results happen.
          Remember the kids in all of this. It is vital that they have the option of access to the other parent, even if the other parent does not seek access.
          The option must always be there. If not they (the children) will ultimately grow to resent it, and I have seen over and over again how this plays out, and it is not very pretty.

          This case is cited in many a case involving a move.


          • #6
            I echo what FL has written. Gordon v. Goertz is the leading SCC case on mobility issues. Moreover, this same case has a very nice judicial analysis and threshold criteria on a material change of circumstance in general for said child. It is a worthwhile read.



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