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Mom Takes Away Child without Dad’s Consent – Seeking Answers

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  • #16
    Solidifying further; crown brief on the criminal is privileged from the civil. See CanLII - 2004 CanLII 39048 (ON C.A.)

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    • #17
      couldn't edit above but ... In hindsight, I'm thinking an exception to above could be shown as 'parental conduct' when best interests applied. Depends on the nature of the situation.

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      • #18
        Best Interests - Parental Abduction

        Originally posted by lilspinx View Post
        couldn't edit above but ... In hindsight, I'm thinking an exception to above could be shown as 'parental conduct' when best interests applied. Depends on the nature of the situation.
        This site has a good review of "the best interests":

        http://www.ottawadivorce.com/custody-decided.htm

        So taking the material and applying "best interests" it is easy to demonstrate the following point: (quoted from above article)"One parent's interference with the other parent's relationship with the children."

        Parental Abduction (removing a child without consent or court order) can easily be applied to this quote. Parental Abduction clearly demonstrates that the "other parent's relationship with the children" is not important. Now the long process of demonstrating False Allegations of Domestic Violence unfortunatly often falls on the responding party to these allegations. (Expensive, requires LOTS of research, patience and TIME.)

        "the court will try to minimise the disruption of the child's life (the status quo)"

        Parental Abduction, removing a child from their primary residence, etc... are incredibly disruptive events for any child. To suddenly have a caregiver eliminated from their lives is just a bad idea all round. (Unless there are and strong grounds for doing so of course.) So you can apply this as well with sufficient evidence.

        It is interesting to note that a parent who is willing to disregard their children's "best interests" on false allegations are often the parents most likely to alienate a child and/or engage in Hostile Aggressive Parenting (HAP).

        If you can nip the parental abduction fast as was done in the Shaw case you can establish at minimum a 50-50 access schedule which in my opinion almost eliminates the other parent's ability to alienate children. (Which in itself is ABUSE.)

        What is often missed by the courts in my opinion is that false allegations are ABUSE. If you deconstruct a false allegation of domestic violence (emotional abuse, verbal abuse, physical abuse, child abuse, etc...) the offending party making the claim is basically under a veil of "abuse" calling the accused party "mentally ill". Abuse is linked to many mental illnesses and root cause for abuse (habitual, not the one time mistakes generally) is a mental illness. If your accusing spouse uses any of the terms clustered with the standard "abusive behaviour" category read it as a statement of mental illness against you.

        Using the criminal justice system improperly is often recognized in the Hostile Aggressive Parenting materials. HAP leads to PAS. You don't just go from good happy kids to alienated kids without first engaging in HAP. PAS is the result of HAP.

        Generally, when false allegations are involved there is an underlying mental health condition existent in the accusing party. It is important to remember that emotions (cognative distortions) are often the driving force to parental abduction lead with false allegations. There is a pile of materials and studies on this. (See Eddy's work for the best lay-person integration of all this and a denormalization of the psycho-babble often related into human readable text.)

        Be aware of the Internal Upsetters that trigger your partner/spouse. It is these "fears" (cognitive distortions / IUs) that drive their actions. Document them, understand them and link EVIDENCE (even past behaviour) to these "worries"/"fears" that the other parent is expressing. They will become the basis of their affidavit.

        If there is a finding of false allegations I think it is important for the abused parent to persue a possible underlying mental health condition under their children's best interests. Why? My opinion is that children need both parents. Simply taking a child away because they need both parents and it should be the goal (my opinion) for the courts to insure children have both parents in their lives.

        Under the concept of Universal Health Care wouldn't it be in our children's best interests that we leverage the medical system to help our children have happy and healthy parents? (Far reaching statement I know but, it is my opinion.)

        It could only result in productive, happy and healthy children and eventually adults. Which benefits not just our children but, our country. Unfortunately, motions are "just in time" decisions and often do not consider the long-term impact to the family. This in my opinion is a failing in the system. I would love to see a day when the health care system integrates beyond and into social issues further. (Yes, I am a dreamer at times but, I think it is a good one.)

        Good Luck!

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        • #19
          Thank you Tayken for your responses (BTW I wonder do you practice family law yourself by any chance?)

          I think my fear, concern and confusion is that, on the one hand, we all know that one parent should not and does not have any legal authority to move out with kid without dad's consent. But on the other hand, some say that in real life mom has a 90% chance to actually be able to do it and even police don't care.

          Personally without any legal background I would intuitively think that since the child has been living in the house (regardless of how young s/he might be), the court should order the kid to be returned. Then the parents can start to sort out their stuff. But before there is any agreement or court order, no one should be allowed to move out the kid from her familiar surroundings.

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          • #20
            Originally posted by lilspinx View Post
            Solidifying further; crown brief on the criminal is privileged from the civil. See CanLII - 2004 CanLII 39048 (ON C.A.)
            Interesting read!

            Possibly (my opinion) is the driving factor on this is probably the difference in the two systems. Balance of Probability (civil) versus Beyond Reasonable Doubt (criminal).

            It is like trying to mix been and liquor - it just makes you sicker. (Or it could make your case sicker if you try.)

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            • #21
              Originally posted by Acura View Post
              Thank you Tayken for your responses (BTW I wonder do you practice family law yourself by any chance?)
              Nope. These are just my personal opinions I attempt to apply to materials I have read. As with anything on a message board check with a lawyer qualified in family law. You are facing a complex problem that can quickly turn into the 10% of ugly cases before the courts.

              I can't stress enough as to the importance of having a solicitor who specializes in FAMILY LAW for a situation you are describing in your message.

              Originally posted by Acura View Post
              I think my fear, concern and confusion is that, on the one hand, we all know that one parent should not and does not have any legal authority to move out with kid without dad's consent. But on the other hand, some say that in real life mom has a 90% chance to actually be able to do it and even police don't care.
              1) Investigate your "fear". Is it driven by evidence? Is the other parent *really* going to abduct the children. My advice is to reflect on what is driving your "fear" / "worry" first. Put the evidence together on what is driving your fear. If it is a one-off statement my opinion is to take it seriously and address it with the other parent. (But, to do it through a solicitor.)

              2) Get a clinical psychologist if you can afford it. They can help you sort out the driving facts behind what is driving your "fear". Is your fear based on facts or a cognitive distortion. (I can't say if your expressed fear is but, a clinical psychologist can help you sort this out hence the recommendation.)

              3) Once you have assembled the evidence to your "fear" you are expressing you can better communicate it both to the police and court WITH EVIDENCE and RELEVANCE. Avoid turning it into an emotional fact. Very hard to do in the heat of the moment. So take the time now to put it all together. Not after the event happens. If it never happens, then take it as a learning opportunity. If it happens, use the evidence and materials.

              4) "Some say". Note that very important keyword. If we all lived our lives on what "some say" we would be no better than lemmings walking off a cliff. You do have rights under the law as a parent and find a good (or great) solicitor who understands this and will vigorously defend your position to these rights.

              5) As for the police. You are tasked with a hard problem. Police hate and often do not get involved in domestic situations.

              Originally posted by Acura View Post
              Personally without any legal background I would intuitively think that since the child has been living in the house (regardless of how young s/he might be), the court should order the kid to be returned. Then the parents can start to sort out their stuff. But before there is any agreement or court order, no one should be allowed to move out the kid from her familiar surroundings.
              Your parental intuition is correct. It isn't just fathers this happens to though. Keep that in focus too.

              Now, as demonstrated in the Shaw decision sighted earlier the children wasn't to a full custody to the mother. It was a 50-50 basis. This is appropriate as prior to the stunt pulled by the father it is (as stated in CLRA/FLR/etc...) that parents have equal right to care for their children. So the resulting decision in my opinion (as demonstrated in Shaw) often isn't a return to the parent who remains in the primary residence.

              There are a few caviots to this though. Jurisdiction for one. If the abducting parent runs to a unsustainable distance from the primary residence then, there may be an order to return stability. As stated before parents are welcome to live where ever they want but, if their decision is NOT in the child's best interests... The kids lives (schooling etc) shouldn't be disrupted because of this.

              For example: Skalitzky v. Skalitzky

              CanLII - 2010 ONSC 7150 (CanLII)

              Good luck!

              Comment

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