Custody / PR legal question...

[Sheps]

You will be bound by whatever your custody agreement mentions. If she is responsible for picking up and dropping them off at your husbands place of residence, that is what she has to do. If your husband is responsible for picking up and dropping them off, you have to do that.

Now, the grey area is where the Hague convention comes in. If she is responsible for picking up and dropping off, she would have to do that. If there is no such agreement, I would honestly just maintain what you are doing as I think it would be easier in the long run. If she has visitation rights, you technically keeping them could also be a violation of the convention, which honestly you don't want to get mixed up in. Maintain the status quo for the moment, I know it is a struggle, but that is what you might have to do.

As an aside, what field did your husband work in?

 

[marlasinger]

A struggle indeed, but I definitely don't want to do anything that will make things worse on our side.

There is no custody agreement that specifically mentions dropping off/picking up. Actually, our lawyer went through their divorce decree and found no mention of a custody arrangement in it at all. The only place custody of the children is mentioned is in their separation documents, and that only states 50/50 split of custody, nothing more specific. What we have worked out now has all been verbal agreements between my husband and his ex. When her first weekend came around to have the kids after the move, she made a big show of emotion to my husband about how she couldn't get into Canada to pick them up. So he obliged and it's just been ongoing ever since. She's made no effort to find a way to cross the border.

He worked for a New York state max penitentiary for 15 years before moving here. Not as a guard, but dealing with inmate records and sentencing/releasing.

 

[canadianwoman]

Child support is the child's right. Any agreement a parent makes to not ask for it can be completely ignored by the court. It sounds like you should have no trouble getting or keeping custody. The wishes of the older girl will be listened to. The wishes of the younger one are less important to the judge but they do not want to separate siblings.

 

[Alurra71]

This is important. Where do the children CURRENTLY reside?

If they are living full time with you and dad, I recommend having your lawyer send a request to the office of judicial court that the exwife filed the papers at. Because the children do not LIVE in that courts jurisdiction, she has no right to file a case in that jurisdiction for the children. If she wants to change and/or alter provisions from the previous divorce or to fight for custody, she would be required to file for that right in the jurisdiction where the child resides.

NOW, that being said, those are the rules when we are talking about 'interstate' custody affairs in the USA. I know because I went through this once, with my ex. He and his wife were looking for a way for him to not have to pay child support. He filed papers in Maine, we lived in Florida. I sent a notarized letter to the judicial court where he filed showing proof that the child resided in Florida, not Maine and they dropped his case like a hot potato due to jurisdiction. As far as I know the rules are the same across the 50 US states.

You should have your lawyer check into jurisdiction rules cross country. If the children are legal PR's of Canada and reside in Canada, then I would think legally she would need to file her dispute in Canada, but since she can't be bothered to make her way across the border, it sounds like it would be fruitless anyhow. *shrug*

Anyway, just another avenue for you to take a look at.

Best of luck.

 

[Sheps]

They reside in Canada from her comments here

 

[truesmile]

This is important. Where do the children CURRENTLY reside?

If they are living full time with you and dad, I recommend having your lawyer send a request to the office of judicial court that the exwife filed the papers at. Because the children do not LIVE in that courts jurisdiction, she has no right to file a case in that jurisdiction for the children. If she wants to change and/or alter provisions from the previous divorce or to fight for custody, she would be required to file for that right in the jurisdiction where the child resides.

NOW, that being said, those are the rules when we are talking about 'interstate' custody affairs in the USA. I know because I went through this once, with my ex. He and his wife were looking for a way for him to not have to pay child support. He filed papers in Maine, we lived in Florida. I sent a notarized letter to the judicial court where he filed showing proof that the child resided in Florida, not Maine and they dropped his case like a hot potato due to jurisdiction. As far as I know the rules are the same across the 50 US states.

You should have your lawyer check into jurisdiction rules cross country. If the children are legal PR's of Canada and reside in Canada, then I would think legally she would need to file her dispute in Canada, but since she can't be bothered to make her way across the border, it sounds like it would be fruitless anyhow. *shrug*

Anyway, just another avenue for you to take a look at.

Best of luck.

I've been waiting for someone to mention the issue of jurisdiction as I thought it would be an issue also. Especially from someone with personal experience with that. (Surprised the lawyer didn't mention it but lawyer is also from NY). I'm thinking their family court cannot do anything that reaches into Canada.

 

[canadianwoman]

It depends where the children habitually reside. If they had been living in Ontario for more than a year, then that would be their residence, given that the mother gave permission. But if they only moved to Ontario in January and were living in New York until then, and they go back to New York on weekends and for the summer, a New York court might find they are habitually resident in New York.
I say 'might' because with the mother's permission for them to move to Canada, it sounds like their habitual residence has moved as well.

 

[marlasinger]

In terms of habitual residence, they've been in Canada since January but always under my husband's primary care. They have spent 19 days out of 97 in New York with their mother since the move, they are with us the rest of the time. Our lawyer mentioned something called the UCCJEA, that he's going to pursue if he can - it essentially allows Canada to act as a state if the children live here but have original ties to a US state. We could, theoretically, bring the case to an Ontario court. But from my research into this it seems to indicate the kids would have to had been here for 6 months for that to take effect.

Between my husband being the custodial parent, being the sole provider of everything for the children, their mother never taking an active part in their upbringing/not taking advantage of her 50% split of time with the kids, and then signing our PR papers to let them move to Canada, I would hope, even if we can't bring the case to an Ontario court, that a New York court wouldn't remove either of the children from my husband's care.

Child support is the child's right. Any agreement a parent makes to not ask for it can be completely ignored by the court. It sounds like you should have no trouble getting or keeping custody. The wishes of the older girl will be listened to. The wishes of the younger one are less important to the judge but they do not want to separate siblings.

If this is true, then it would probably end up being very difficult for their mother to see them at all. I don't see how a mother that provides nothing to her children and then ask my husband for money, that is essentially for her personal use, would be rewarded. But sometimes family court isn't fair. She has no other financial obligation to the kids, but feeding them sometimes. You would think she'd be able to budget for the cost of gas. And my husband hasn't had a job for any of that time either. She has. My husband, being much less evil than I am, doesn't want to take money from her if he can avoid it. But I feel it would be a nice vindication for him if a court told his ex she had to start providing something for once in her life.

 

[Sheps]

I don't think the UCCJEA would work for you. It appears that once a court has jurisdiction, the only way you can change jurisdiction is by having the original court say "we can't rule on this anymore because evidence of x, y, and z relating to childcare is no longer available in this state"

 

[marlasinger]

I thought as much. During my Googling, it was reading like a long shot. In which case my fear would be that because the kids are from NY that a NY court would be biased, for lack a better term, and say they have to move back there despite having a better living situation here.

 

[Alurra71]

If dad can show proof that mom hasn't had any contact with children nor cared for children even while he was residing in the same state the odds of them forcing the children back with her would be slim to none at best. If he's been primary care provider for the children providing them with all of their basic needs without mom providing for anything this will likely be the outcome.

But if you want to 'nip' this in the bud, as such, I would suggest filing a countersuit for child support along with fighting her custody request. You may find that will cause her to back off since you stated she doesn't want the older child and is only looking to try to get custody of the younger.

One thing you will want to be very careful of is making an attempt to cast her in a light that makes her look bad without proof to back it up. No matter what she's done without proof it didn't happen and it will reflect very badly upon you and your husband if you start casting around some of the comments you made here if they are not provable and such. I'm not telling you that you can't have an opinion, only that if you appear to be trying to 'sour' the relationship between a mother and her children you will be cast as the bad guy and it will give her a leg to stand on, so tread carefully

 

[marlasinger]

I wouldn't want to bring up anything that would seem like a smear campaign. And I don't want to see my husband's chances of getting what he deserves, and the children deserve, hurt because of personal anger towards the woman. You know, we're not out to take the kids away from her or trying to go after her for being an unfit mother. We don't talk about her around the kids. We have always just wanted what is best for them. Unfortunately I can't say the same for her. The kids have told us of multiple attempts at manipulating them, of saying terrible things about my husband in front of them, of lying to them about every day circumstances, and even big ones. For example, she and my husband agreed to divorce amicably, they wanted to be rid of each other as quickly and easily as possible. But when it came to talking to the kids, it was all "it's your father's choice to divorce. he's breaking up our family" etc. This is partly why my stepson was not mentioned in the custody suit. He's old enough and smart enough that his relationship with his mother is souring all on it's own because of her actions, without my husband or my interference. The younger child hasn't quite caught on yet, so her mother only wants her.

We tried from the beginning to be agreeable and give her as much time as she can have, and to meet her halfway in driving and whatnot. We were never planning on going after her for child support, or to cancel the support she gets, or to change the custody arrangement. In fact, if the younger child had come to us and said she wanted to move back with her mom, we'd have discussed it. But we're left with little choice but to fight this. And if we can present facts about childcare and money in a logical way without it coming across as a petty or vindictive, that's what we'll do.

The lawyer retainer is officially paid so we'll be filing a countersuit for child support before the end of next week. I think the fact that we have a lawyer who can explain how the law is on our side, or so it seems, it might scare her enough to drop these suits altogether. If not, we've been told her assigned lawyer will warn her against going any further because she won't be granted custody, especially of only one of the kids.

Thanks for letting me vent here lol.

 

[Alurra71]

I wouldn't want to bring up anything that would seem like a smear campaign. And I don't want to see my husband's chances of getting what he deserves, and the children deserve, hurt because of personal anger towards the woman. You know, we're not out to take the kids away from her or trying to go after her for being an unfit mother. We don't talk about her around the kids. We have always just wanted what is best for them. Unfortunately I can't say the same for her. The kids have told us of multiple attempts at manipulating them, of saying terrible things about my husband in front of them, of lying to them about every day circumstances, and even big ones. For example, she and my husband agreed to divorce amicably, they wanted to be rid of each other as quickly and easily as possible. But when it came to talking to the kids, it was all "it's your father's choice to divorce. he's breaking up our family" etc. This is partly why my stepson was not mentioned in the custody suit. He's old enough and smart enough that his relationship with his mother is souring all on it's own because of her actions, without my husband or my interference. The younger child hasn't quite caught on yet, so her mother only wants her.

We tried from the beginning to be agreeable and give her as much time as she can have, and to meet her halfway in driving and whatnot. We were never planning on going after her for child support, or to cancel the support she gets, or to change the custody arrangement. In fact, if the younger child had come to us and said she wanted to move back with her mom, we'd have discussed it. But we're left with little choice but to fight this. And if we can present facts about childcare and money in a logical way without it coming across as a petty or vindictive, that's what we'll do.

The lawyer retainer is officially paid so we'll be filing a countersuit for child support before the end of next week. I think the fact that we have a lawyer who can explain how the law is on our side, or so it seems, it might scare her enough to drop these suits altogether. If not, we've been told her assigned lawyer will warn her against going any further because she won't be granted custody, especially of only one of the kids.

Thanks for letting me vent here lol.

I certainly hope you did not think I was reprimanding you for your views, I only wanted to be sure you knew what could happen if things like that are said around the 'wrong' people

I am going to side with your lawyer on this one, I think she will rapidly drop all requests once a counter suit is filed. If I were you, I would also file a suit for full custody of BOTH children. She could attempt to get vindictive and keep them and without legal documents proving where they should reside, it would be difficult to get them returned and very hard on them.

Just take care of those babies (even if they are teen and young child) because this will affect them even if they don't show you or tell you about it. Just make sure they know they are loved and safe and always welcome with you and dad no matter what happens.

Take care and best of luck to you!

 

[marlasinger]

Oh it definitely wasn't taken as a reprimand. No worries

Our lawyer wants to see the list my husband has been keeping for the last 3 years about things his ex has done/hasn't done. For example, kicking the kids out because she couldn't "deal with them anymore", hitting them, name calling, bad mouthing my husband to them. One time she called the oldest a "f---ing moron" because he doesn't believe religious things, kicked him out of her house and said she didn't want a relationship with him anymore. She's taken them to a friend's house and left them with the friend's husband and gotten pass-out drunk a couple of times. She's let them miss school because she couldn't get out of bed....It's a long list.

After we provide this list we can talk about whether full custody is something my husband could actually be granted. From what I've read, been told and what the lawyer has said, courts are pretty reluctant to change joint custody to full custody if a situation is working and the other parent isn't demonstrably unfit. so while most agree that she's unstable and not really fit to raise kids, it's another thing to prove that to a court. Our lawyer is confident on the joint custody front that we could get it in writing that they spend the school year in Canada. So, we'll see what happens.

At the end of the day, you're right about love and care. And I think they know where they are safe and wanted. You know, I was saying to my mother (both my parents are re-married) that as teenagers, my sister and I had big problem, as most kids do, when our parents got re-married. I think most kids are stand-offish and can be rude or territorial and give the step-parent a hard time. My stepkids never did. They were excited to meet me. They have always been so sweet and welcoming to me. They've gotten me mother's day presents since I came into their lives. And i think that goes to show you what kind of kids they are, and unfortunately, what kind of mother they crave. Anyway....

....I know this wasn't strictly an immigration topic, but thanks for all the advice!

 

[Alurra71]

Oh it definitely wasn't taken as a reprimand. No worries

Our lawyer wants to see the list my husband has been keeping for the last 3 years about things his ex has done/hasn't done. For example, kicking the kids out because she couldn't "deal with them anymore", hitting them, name calling, bad mouthing my husband to them. One time she called the oldest a "f---ing moron" because he doesn't believe religious things, kicked him out of her house and said she didn't want a relationship with him anymore. She's taken them to a friend's house and left them with the friend's husband and gotten pass-out drunk a couple of times. She's let them miss school because she couldn't get out of bed....It's a long list, anyway.

After we provide this list we can talk about whether full custody is something my husband could actually be granted. From what I've read, been told and what the lawyer has said, courts are pretty reluctant to change joint custody to full custody if a situation is working and the other parent isn't demonstrably unfit. so while most agree that she's unstable and not really fit to raise kids, it's another thing to prove that to a court. Our lawyer is confident on the joint custody front that we could get it in writing that they spend the school year in Canada. So, we'll see what happens.

I know this wasn't strictly an immigration topic, but thanks for all the advice!

OK. Even if he can't file for full custody, then file for primary residence Joint custody while dad has primary residence will also put the ka bosh on her attempting anything stupid. Great job for Dad for keeping a 'file' on what has/has not been done for the last few years.