Separation and Divorce

Child Custody and Visiting Rights During a Breakup

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When parents break up, they must decide who will have custody of the children. During this difficult time, they must keep in mind their rights as well as their duties toward their children. Their actions can affect their chances of getting custody.

The Rights of Each Parent

After they break up, both parents have the right to custody of the children because they are equal in the eyes of the law.

So, one parent doesn’t have more of a right than the other to live with the children. This means that a parent can’t simply take custody and leave with the children.

But there are some situations where one parent can leave and take the children without the other parent’s permission.

Taking Custody Without the Other Parent’s Consent

Taking custody of the children without the other parent’s consent can be considered abduction (kidnapping). If one parent abducts the children, the other parent can go to the police. Depending on the type of abduction (local, interprovincial or international), parents must follow different steps when they report their children missing.

But if the situation is more of a family issue than abduction, then going to the police probably won’t do much good and could be traumatic to the children. At this point in a breakup, the police usually don’t get involved to move the children from one parent to the other.

The best thing might be to ask a judge for a decision on an urgent basis about who should have custody on a temporary basis. The decision takes only a few days to get.

Divorce: Vocabulary Change in the Law

Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.

Example

Lily tells Max she is leaving him and wants to take the children and go live with her parents. Max doesn’t want the children to move out. When he gets home from work the next day, he discovers that Lily has left and taken the children.

Max speaks to them by phone that evening. He knows they are not in danger and are just a few blocks away.

In this type of situation, Max should ask a judge to make a decision on an urgent basis about custody of the children. In his application, he can say that Lily took the children without his agreement.

Right to See the Children When They Are With the Other Parent

Usually, until the judge decides who will have custody, the parents have the right to see their children when they want to. This right applies equally to both parents, and they must exercise this right in the best interests of the children.

Here are some examples of what is not in the best interests of the children:

  • The parents argue at school or at the daycare about who will take the children home.
  • One parent shows up at the other’s house to take the children using force, knocking on the door and ringing the doorbell over and over.
  • The situation has deteriorated to such a point that the police must be called in.

To avoid problems, parents must exercise their rights without abusing them, and they must consider the rights of the other parent too.

Consequences of Leaving the Children With the Other Parent

When parents break up, there might be reasons for one parent to let the other have custody.

Here are some examples:

  • A parent leaves in a rush and leaves the children with the other parent.
  • One parent takes custody of the children without the other’s consent, and the other parent does nothing about it.
  • One parent leaves the children with the other parent and plans to take them back later on.

The more time passes, the more difficult it will be for the parent who left the children with the other parent to get custody. This is because, when a judge decides who gets custody, the stability of the children is a very important factor.

If one parent tries to impose a custody arrangement, the other parent can do something about it. As soon as they break up, the other parent can ask a judge to make a decision on the custody of the children on an urgent basis.

The children’s stability is just one of many factors judges consider. A judge might therefore decide to give custody to one parent even if the children have been living with the other parent since the breakup and a lot of time has passed.

Some people can get free or low-cost legal services through legal aid. See Legal Aid: Do I Qualify? for more information.