Kids & Custody

1. What is Custody?
2. Custody in an Emergency Situation
3. What happens if my partner also tries to get interim custody?
4. Custody after Leaving Your Partner
5. What Can you Do if your Partner Takes the Kids?
6. Other Frequently Asked Questions

 

Custody refers to legal guardianship of children. The law assumes that both parents (or guardians) have custody of their children. This means that until the victim takes legal action against their partner, their partners is a parent or legal guardian, has a right to see the children. 

It is very important that you deal with the issue of custody of your children immediately. If you can, make some preparations before you leave; for example, save some money for a lawyer and get some legal advice from a lawyer who practices family law.

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You have to apply to court for an order to change the normal situation of both parents (or guardians) having custody of your children.

You may want an order for interim (short-term) custody in an emergency situation when you have left your spouse and taken the children with you. Interim custody is a temporary custody order that lasts until a time specified in the order or until a judge makes a final decision on custody.

• The court can make an interim custody order on very short notice, sometimes within 24 hours.
• When making a decision about custody, the judge will look at what is best for the child(ren). Therefore, be prepared to show why it would be best for the children to be with you.

If you do not get an interim custody order and you do not let your spouse see the children, you might be charged with kidnapping (criminal abduction) of the children. To avoid the possibility of criminal charges, get an interim custody order as soon as possible after leaving.

Getting an Interim Custody Order 

Interim custody is almost always done by an application before a judge using affidavits. It is very rare for a judge to hear from witnesses when deciding interim custody. You, through your lawyer, must give notice to your spouse of your application for interim custody and give your partner and his or her lawyer a chance to respond.

The judge hearing an application for interim custody will want to know:

• basic information like the names and ages of the children;
• any special needs or health concerns the children have;
• who has been the primary caregiver for the children up until now;
• the basic facts of the marriage breakdown and why living together is no longer possible;
• your proposal for where you and the children will live;
• childcare or after school care arrangements if necessary;
• financial details about how you and the children will live;
• the children’s extracurricular, school, sports and community activities and any special relationships with extended family and how these matters may be least disrupted for your children;
• any other important factors that will have an impact on the best interests of your children.

All of this information will be put by your lawyer into an affidavit and you will be asked to swear that it is true.

If your partner disagrees with your application for interim custody, then he or she will probably swear an affidavit setting out the facts as he or she sees them. It might be different than the things you say in your affidavit. Your partner’s affidavit will also be filed at the courthouse.

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If you both want interim custody of your children and file affidavits, your lawyers will schedule an Appointment for Questioning. This is a question and answer session held under oath, held in one of the lawyer’s offices. A court reporter is present to make a record of everything that is said. The record, called a transcript, can then be referred to by both lawyers and the judge when your case goes to court for a hearing. It will help to clarify the facts involving the family situation and will help the judge decide interim custody.

For interim custody, the judge considers “the best interests of the child”. This is what a judge thinks about when making an order for custody at the time of a divorce, too. It means that the judge will consider what is best for the children in your particular family, taking into account things like:

• where and with whom the children have been living;
• closeness to schools, friends;
• extended family and extracurricular activities;
• special health care needs, if any;
• the children’s ages and their relationship with each parent;
• daycare and after school care arrangements; and
• many other factors.

The judge tries to look at the whole picture of the childrens’ lives and decide what is best for the children.

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Custody after Leaving Your Partner

If you get an interim custody order, it is temporary. This means that you will have to find a longterm solution to custody of the children. In a situation where the parents cannot agree about custody arrangements or where one party fears for the safety of the children, a judge may have to make the decision.

The creators of this website, the Centre for Public Legal Education Alberta has a booklet about Child Custody and Parenting available online here. This booklet can provide you with an overview of some of the options you might want to consider.

Custody can be very complex. It will be very helpful to get legal advice from a lawyer who practices family law.  For help getting legal advice visit our Get Legal Advice Section.

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What can I do if my husband or partner breaks the custody order? 

You can immediately go back to the court for help. The court can order the police to enforce the order. It is very important that the terms of the order be specific and very clear, so that there is no confusion. The police will also need very clear evidence that the order has been breached. Keep records and get help from witnesses.

If someone resists or disobeys enforcement of a custody order, he can be fined or sent to jail. The children will be returned to you if they were taken away when the order was broken.

What if my husband kidnaps the children and takes them to another province even though I have a custody order?

If your children are abducted you can report it to the police who can file a missing persons report and lay charges against the abducting parent. Response to an abduction charge may be faster than enforcing a custody order. If your husband has broken the terms of a custody order, you can also try to get the order enforced in the other province.

Once abduction charges are laid a Canada-wide warrant is issued for the arrest of the abducting parent. This means that the child(ren) may be found and returned more quickly. The court in the province where the children have been taken may require proof of your Alberta custody order. This procedure may take some time.

What if my husband kidnaps the children and takes them to another country?

If the children have been taken abroad it may be hard to bring them back. It depends which country they are in. Some countries have signed an international treaty and will recognize and enforce custody orders made by courts in other countries if the children are not too settled or will not be returning to a harmful situation.

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What happens if I take the children from home with me to live in a shelter? 

There are two possible courses of action that your husband or partner might take using criminal law or family law.

• He might make a complaint to the police that you have abducted the children.
• He might start a legal action for custody of the children.

This is why it is important to deal with the issue of custody of your children as soon as possible.

How can I be accused of abducting my own children?

The law says that where there is no custody order in existence, it is an offence for one parent to take children under fourteen years of age from the other parent with the plan of keeping them away from him. If you hide the children so that they are not available to their father, there is a possibility that you will be charged.

Removing the children could also be an offence if it is against the terms of a custody agreement that already exists.

There is, however, a defence to any possible criminal charge. If you can show that you took the children away because the children or you were in immediate danger of being harmed, then you may be able to resist criminal charges. If you can show that you honestly believed such a danger existed, you can likely oppose charges.

How can my partner apply for custody of the children when he is threatening to harm them?

Even when parents separate physically, they both still have equal custody rights to their children until a court order says differently.

How can I show that I believed the children or I were in danger of being harmed?

It is extremely important to have proof to back your claim. If you are in an abusive situation, try to make some plans before you leave. Keep a record of when and how you or the children were abused. If you or the children are seeing counsellors because of the abuse, keep records of this also.

It will also be useful if there are any witnesses to the abuse. Even though you may think it is taking place in private, your friends and family may notice more than you think. Try talking to them to see if they can help.

Do I need a lot of money for a lawyer in order to get custody of my children?

There are ways to get legal assistance when you have limited finances.

• First, you may be eligible for Legal Aid. Legal Aid is a fund that will subsidize your legal costs depending upon how much money and property you have.
• Second, you can discuss payment with your lawyer. He or she may be willing to charge a lower fee or let you pay by installments.
• If you are planning to leave an abusive situation, it is a good idea to put some money in a secret emergency fund that you can use when you leave.

Do I have to let him see the children even though he has threatened to kidnap them?

The parent who does not have custody of the children is normally given access or visiting rights by the court. The view of the courts is that normally every child has the right to see and spend time with both parents. Exceptions can be made when it is likely that the child will face physical or emotional harm.

If you fear for the safety of your children you will have to tell your lawyer so that he or she can ask the court that special terms be written into the custody order. Examples of terms that could be requested are

• no access is given; or
• any visits are supervised by someone like a social worker; or
• times and places are specified when visits can take place.

It is very important that the terms of the order be specific and very clear. This is so there is no confusion if the order is broken and it has to be enforced.

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