sole custody

[mtlguy 59]

Hello everyone,

My wife and I are at the NVC stage now. I'm going over all the required documents for the next phase and apparently I need some help/advice with respect to one issue: my sole custody of the kids.

Long story short, I have sole custody of my kids here in Canada. The court order reads: sole custody to the father and access rights to the mother agreed amicably between the parents.

Before she left my ex gave a notarized letter allowing me to travel freely outside of Canada with the children. At the time I had no intention of moving to the states.

Fast forward a bit, I met my USC wife, got married, had her become a Canadian permanent resident, then for family reasons, we decided to move to the US to be closer to her family and kids.

Meanwhile (back at the farm) my ex was not involved with our kids for more than 2 years. So in essence, she didn't exercise her access rights. not even phone calls or emails on the kids' birthdays. Just recently, she decided to re-surface and reach out to the kids. The children have mixed feeling about her (can't blame them).

Before I started this whole process, and while my ex was unreachable (had no idea where she was) I had sent the Montreal Consulate an email describing my situation and asking their advise about the custody issue. They said what I have (sole custody order & notarized letter) should be enough.

Now what I am compiling all the documents for the NVC stage, I did more research and found out that the Consulate wants to see these exact words on the sole custody order: "sole custody to the father, and NO ACCESS to the mother", which clearly is NOT what I have on my order.

Furthermore, the notarized letter I have from her is quite generic: stating that I can travel to wherever I want with the kids, but does not specifically say "Immigrate to the US".

What do you guys think I should do? Go back to court and ask a judge modify my custody order?

[novedsac 355]

Traveling and emigrating/immigrating are two very different things. My children live with me and visit their mother, who has frequently given me permission to take them outside the country for vacations, up to a month once. However, I would expect her to disagree with a request to relocate with them outside the country; in fact, I would expect she'd put up a fight if I took them to live in another state. I cannot see any circumstances whereby a US judge would allow me to take the children to live in another country which would make visiting their mother and/or allowing her to be involved in their lives near impossible.

In the US there are two kinds of custody - physical custody and legal custody. I have full physical custody (also known as primary custody), but my ex and I have joint legal custody. This is the typical scenario in a custody decree. Losing legal custody is essentially losing parental rights; to do so one would have to convince the Judge that the other parent is unfit and a danger to the child.

I'm not sure if the situation is the same or different in Canada. You need to clarify exactly what you have and do not have with your 'sole custody'. You should prepare for the situation that your ex may put an effective roadblock in plans to take your children with you outside of the country to live.

[mtlguy 59]

I agree with your point about physical vs legal custody.

The variant in my case is the fact that my ex is no longer present in Canada; so whether I move to another city in the same province, to another province within Canada, or to the US, it's all the same with respect to her (in theory that is), seeing the fact that she's not even physically on the same continent, and the fact that she's been away from the kids' life for a while now.

If she wants to put an effective roadblock, it would be for spite I guess. I don't see that holding in court.

[novedsac 355]

You'd be surprised how long and expensive an ordeal a spiteful person can cause.

She may be willing to provide specific permission for the children to emigrate from Canada - would the consulate accept this? Maybe they would require her presence in person?

Any change to the court order is likely going to require due notice to her. If she's no longer in Canada, is she able to mount much of a defense to a court action you file? Maybe this would go in your favor.

[NikLR 13,227]

Having access does not mean she has part custody. Sole custody is sole custody.

[mtlguy 59]

Having access does not mean she has part custody. Sole custody is sole custody.

According to a fellow vj'er who was in the same boat, her sole custody papers said: sole custody to her and access rights to the father. The CO at the consulate wanted to see: sole custody for her, NO ACCESS to the other parent. The poor woman had to go back to court, hunt down her estranged ex (who hasn't seen his kid in 16 years) and modify the judgment order to a wording that pleased the consulate.

I sent a clarification request to the consulate in Montreal. Let's see what they have to say !!

[novedsac 355]

yeah, okay, so with some quick reading it seems that in Canada 'access' is akin to what we call 'legal custody' here in the US. NO ACCESS seems akin to removing parental rights of the noncustodial parent … not sure about Canada, but here in the US courts will not strip someone of their parental rights unless they are determined to be unfit as a parent (i.e., a danger to the child which is expected to remain until child reaches adulthood). I've seen crackhead moms and drunk dads serving prison for hit-and-run still maintain their parental rights, as harm to the child was never demonstrated and they were working their way half-a$$ through a treatment program. Not seeing your child for a few years (or more) is not enough to remove parental rights. Perhaps it's different in Canada …

You may be better off starting a discussion with the ex … see what she is willing to do, at what price, etc.

Oh, how old are the kids? (sorry if i missed it) … sometimes a court will consider the desire of the child if they are old enough, like 14yo in my county of residence.

Edited March 23, 2014 by novedsac

[mtlguy 59]

yeah, okay, so with some quick reading it seems that in Canada 'access' is akin to what we call 'legal custody' here in the US. NO ACCESS seems akin to removing parental rights of the noncustodial parent … not sure about Canada, but here in the US courts will not strip someone of their parental rights unless they are determined to be unfit as a parent (i.e., a danger to the child which is expected to remain until child reaches adulthood). I've seen crackhead moms and drunk dads serving prison for hit-and-run still maintain their parental rights, as harm to the child was never demonstrated and they were working their way half-a$$ through a treatment program. Not seeing your child for a few years (or more) is not enough to remove parental rights. Perhaps it's different in Canada …

You may be better off starting a discussion with the ex … see what she is willing to do, at what price, etc.

Oh, how old are the kids? (sorry if i missed it) … sometimes a court will consider the desire of the child if they are old enough, like 14yo in my county of residence.

It's the same in Canada. Parental authority (or rights) are hardly stripped away from the non-custodial parent. This is why I found it weird that the consulate needed this kind of wording on a custody order.

My kids are teenagers.

[novedsac 355]

Consulate is afraid of allowing the kids to immigrate without the express consent of both parents or the express demonstration that one parent does not need to provide consent.

They're afraid of being caught up in the next 'my child was kidnapped by my ex-spouse' headline.

Like I said, probably best to come up with some creative solution with the ex. If your ex wants visitation, and she's demonstrated some effort albeit recently, then this will be the hardest challenge.

[NikLR 13,227]

I'm sure your ex can visit the kids in the USA as easily as she did in Canada. Oh wait.... (well lets say technically can... after all she doesn't LIVE in Canada either.)

[Golden Gate 530]

If you went to court, I would think that the fact your children are teenagers would help your cause. They can speak for themselves to the court.

[N-o-l-a 7,167]

I think the access thing is more akin to "visitation". Having moved my daughter to another foreign country, I can tell you that it was critical that without express permission from the non-custodial parent, you must have either exclusively sole custody with no visitation or strip the parental rights of the other parent. Even driving into and out of Canada with my sole custody paperwork for my daughter was an issue. We got asked a ton of questions and they had to look up information regarding whether my daughter had been flagged, etc.

I'm not sure what ceasing their mother's parental rights would be like in Canada, but in America you'd have a case for abandonment since she hasn't seen them and there is no contact.

[mtlguy 59]

I think the access thing is more akin to "visitation". Having moved my daughter to another foreign country, I can tell you that it was critical that without express permission from the non-custodial parent, you must have either exclusively sole custody with no visitation or strip the parental rights of the other parent. Even driving into and out of Canada with my sole custody paperwork for my daughter was an issue. We got asked a ton of questions and they had to look up information regarding whether my daughter had been flagged, etc.

I'm not sure what ceasing their mother's parental rights would be like in Canada, but in America you'd have a case for abandonment since she hasn't seen them and there is no contact.

Well no one is stopping her from visiting them in the US or Canada. She chose to to move out of Canada and go incommunicado for 2 years before re-resurfacing (and by re-surfacing I mean she's still outside of Canada - reaching out to the kids by phone once in a while).

In the last 3 years, I had no problem taking the kids across the border to the US to visit my wife's family. Once I was asked about the whereabouts about my ex, and I told them she had left Canada. I had the custody papers with me in case they wanted to see the order, but they they never asked for them.

I always assumed that preserving access rights to the non-custodial parent are tied to the fact that the non-custodial parent lived in the same country. In my case, she packed her stuff, left Canada, apparently got remarried and now is busy raising her kids from the new marriage.

Simply put, she chose not to exercise her access rights for the last 2 years.

I'm sure your ex can visit the kids in the USA as easily as she did in Canada. Oh wait.... (well lets say technically can... after all she doesn't LIVE in Canada either.)

She sure can. She's still a Canadian citizen and can visit the US anytime she wants.

Edited March 23, 2014 by mtlguy