Question: What are the consequences for a woman who leaves her abusive partner and takes the children?

Transcription

1 Question: What are the consequences for a woman who leaves her abusive partner and takes the children? Legal Disclaimer: The information contained in this package is current as of January It is NOT a replacement for legal advice or representation. If you are involved with a family law matter, you should seek legal advice from a family law lawyer. Every case is unique; and legal advice can only be given by a lawyer who has all of the facts and circumstances related to your situation. This document is the property of Luke s Place. You are welcome to reproduce this material for use with your clients in your role as a Family Court Support Worker, but any other use of it, in whole or in part, is strictly prohibited without prior express permission from Luke s Place. Answer: I am going to answer this and the following related questions together: What are the legal implications if she goes to a shelter with the children? What can she do to protect the children before there is a custody and access order in place? What are the consequences if she leaves her children with her former partner? Leaving with the children Many women are unsure about whether or not they can take their children with them when they leave their abusive partner. In Canada, both parents have an equal legal right to the custody of their children until there is a court order or agreement to the contrary. In other words, neither parent regardless of who has been the primary parent has a legal right to custody over the other parent. However, this does not mean a woman must leave her children behind if she is leaving her partner. If the woman is working towards a planned departure, she should have discussions with a lawyer before she goes. The lawyer may be able to have custody and access court documents ready to serve on her partner as soon as she and the children leave. If not, the lawyer can have an initial letter to the partner ready and have it delivered to him as soon as she and the children leave. This letter can outline the situation and invite the partner to contact the lawyer (either directly or through his own lawyer) to begin discussions about custody and access.

2 Alternatively, when the woman and children leave, she can leave her partner a note (taking a copy of it with her) telling him what she is doing and letting him know she will be in touch within a day or two. This note can assure him that she is not abducting the children and that she is prepared to make arrangements for him to see them, once this can be done in a way that is safe for her and the children. She may want to take a copy of this letter to the police station, in case her partner goes to the police to report her missing or to claim she has abducted the children. If the woman leaves without a plan for example, because of a violent episode she needs to get herself and the children to a safe place as quickly as possible. She can then contact her partner in a way and at a time that seems safe, to assure him that the children are fine and with her and that she will be in touch soon to discuss access arrangements. As soon as she feels settled, she can meet with a lawyer to begin the process of working out custody and access. The woman will minimize any legal consequences of having taken the children with her if she stays in the area and has some kind of contact with her partner as soon as possible after she leaves. No matter what she does, he may try to convince the police that she has abducted the children, but without a custody order in place, there is little the police can do. He may bring an ex parte motion for the return of the children. If he is successful with this, she must return the children to him. However, this will be an order with a very short timeframe, so it is extremely important that she immediately begins to prepare for the date the motion comes back to court. This will be her opportunity to explain to the court why she left, why she took the children and what custody and access arrangements she believes would be in the best interests of the children. (Review the training resources materials related to the best interests of the child test and providing evidence of abuse for more details about this.) Regardless of the actions of the woman s partner, she should get legal advice as soon as possible after leaving. Her lawyer can suggest the best course of action based on the facts of her situation. It will be important for her to have detailed information about the history of abuse, its impact on the children, the parenting history and her plans for parenting the children in the future as all of this will be relevant to the best interests of the child test. Taking children to a shelter Unfortunately, there are some family court judges who believe it is not in the best interests of children to live in a shelter. If this is a concern, the woman s affidavit should explain in some

3 detail why she is at the shelter, emphasizing the safety concerns and what protections the shelter offers as well as the other kinds of support and resources provided by the shelter. She should also outline her long term plans with respect to housing so the judge understands that her stay in the shelter is temporary. If there are long waiting lists for affordable housing, she should include this information in her court documents. Keeping children safe before there is an order The issue of whether or not to permit access during the time immediately following separation before there is an order in place is one that is very dependent on the circumstances of each family. If the woman feels the children will be safe with their father and that he won t attempt to keep them, then setting up some access is a good thing to do. It will be helpful to the children, who likely want to see their father. It will show the court later that she has not done anything to interfere with the children s relationship with their father. It may reduce the likelihood of her partner bringing an emergency motion or showing up unexpectedly to take the children from school or day care. If she has some concerns, she may want to suggest access that is supervised by a friend or family member who will ensure that the children are properly cared for and are returned to her at the agreed-upon time. If she has significant concerns, she may want to limit access to the telephone. She may even decide that, until there is some kind of order in place, she is going to keep the children out of school or day care because, without a custody order, schools and day care centres cannot stop the father from picking the children up and the police have no authority to take them from the father to return them to the mother. If the woman is permitting physical access, she should try to get some kind of written confirmation from her former partner about the terms of that access (even an exchange in which they each commit to the dates, times and exchange arrangements). She should plan to document carefully how each exchange and visit goes and any comments she hears from the children (or access supervisor) about their time with their father. She should also ensure that the access and exchange arrangements keep her safe. This may mean having a third party transfer the children back and forth or having the exchanges take place in a public location.

4 Leaving without the children There are some circumstances when a woman might leave her children with her abuser. For example, he may have physical control over the children and she may be unable to get them away from him safely. In other situations, the children may be old enough that they refuse to go with her or she may feel they are better off staying in the family home for a short time until she can get herself set up in new accommodation. Shelters, while wonderful refuges and supports for women and young children, are not great places for teenaged children, especially boys. If the woman does not have concerns for the safety of the children with their father, she may decide it is better for them to remain in the family home, surrounded by their possessions, with their daily life disrupted as little as possible. If she has left without the children because it was not safe for her to take them but she wants to have them with her, she should bring an emergency motion as soon as possible to have the children returned to her. She will need to provide detailed evidence about why she left without them, emphasizing the safety issues, as well as information about why it is in the children s best interests to be with her. Here, she can provide evidence to show that she has been the primary parent in the past and to demonstrate her future parenting plans, including any access arrangements she is prepared to make. If she can persuade the court that she has been the primary parent in the past, that she has a good plan for future parenting and that the circumstances that led her to leave without them were very serious, she has a good chance of having the children returned to her, at least while the custody case moves forward. The more quickly she brings this emergency motion, the better her chances of success. If the woman has left the children behind because she believes that is better for them or because they have refused to go with her, she needs to maintain frequent, regular contact with them if that is possible and safe. If they are school-aged children, she can arrange to meet them for lunch or after school for visits. If they are old enough, she can get them cell phones so they can communicate that way. They may be old enough for online communication. During this informal time with the children, she should resist trying to persuade them to live with her; rather focusing her time on their interests and activities and letting them know how much she loves them and enjoys spending time with them. She can let them know what her plans are, especially with respect to housing and, if they ask about coming to live with her, she can respond to those questions openly.

5 If the children are younger, she may need to approach her former partner either directly or through a third party, to see if he will agree to some informal access while they work out a long-term custody and access arrangement. She should begin a custody proceeding as soon as she can, at which time she can explain to the court why she believed the decisions she made were in the best interests of the children, as well as provide evidence of any abuse, the parenting history and her plans for the future. Women who do not want to parent It is always important to remember, when supporting mothers who have left abusive partners, that some not want to continue to parent. The woman may need a break to recover from the abuse, may not be prepared to parent with an abusive ex-partner, may need some time to rebuild her confidence as a parent or may simply wish to move on in her life without her children. In other words, the assumption should never be made that a woman who has left her children behind wants to have those children with her. In your initial conversations with a woman in this situation, keep the questions open-ended rather than imply or assume that the first thing she wants to do is to go to court for custody. Legal Disclaimer: The information contained in this package is current as of January It is NOT a replacement for legal advice or representation. If you are involved with a family law matter, you should seek legal advice from a family law lawyer. Every case is unique; and legal advice can only be given by a lawyer who has all of the facts and circumstances related to your situation. This document is the property of Luke s Place. You are welcome to reproduce this material for use with your clients in your role as a Family Court Support Worker, but any other use of it, in whole or in part, is strictly prohibited without prior express permission from Luke s Place.