Why should parents obtain legal advice prior to separation?

In my practice, I have been consistently asked by my clients: “how can the legal system allow my ex to unilaterally make the decision of removing our children and preventing me from seeing our children?” The answer is: it does not matter how; it matters that it can.

Obtaining legal advice prior to separation or as soon as practicable thereafter can help prevent this situation and/or equip parents in advance with the knowledge of the steps that should be taken to prevent disadvantages in custody and access cases. An example of difficult cases in my practice have included the following:

  1. Parents separate. Parent 1 removes the child from the home and refuses to communicate with Parent 2 and/or to offer any type of access to Parent 2.
  1. Mother alleges assault by Father. The police investigates the matter and has reasonable grounds to arrest the Father. Father is thus arrested and subsequently released on an undertaking not to communicate directly or indirectly with Mother and not to be within X metres from the Mother’s home or anywhere the Mother is known to be. This means that Father now has outstanding criminal charges which he has to defend in a process that can last approximately up to two years. This also means that Mother can now prevent Father from seeing the children and from returning to the matrimonial home.
  1. Parents separate and reach an oral agreement regarding custody and access. During the access time of Parent 1, Parent 1 has the habit of threatening Parent 2 that the children will not be returned to Parent 2.
  1. Parents separate and parents reach an oral agreement between themselves whereas children reside with Parent 1 and liberal access is provided to Parent 2. This situation continues without complications until Parent 1 falls sick. Parent 1, without legal counsel, agrees to Parent 2, with legal counsel, having custody to the children and both parents sign an agreement to this effect. Parents agree orally that children would be returned to Parent 1 upon recovery of Parent 1. However, when the time comes, Parent 2 refuses to return the children to Parent 1 and Parent 1 is now liable for paying child support in the interim.

The legal strategies in each of the above situations can differ and the results also differ based on the intricacies of each case. Parents must, however, understand that the actions taken immediately upon separation can have severe consequences in their legal case. For example, Parent 1 removes the children from the matrimonial home but Parent 2, for any reason, does not immediately seek legal advice to have the children returned. This can be highly detrimental to the custody case and Parent 2 can find herself in a situation of serious disadvantage and, quite likely, at the mercy of the other parent (particularly in the first six months of the family law case).

What action can the police take in a custody case?

Immediate action cannot be emphasized enough and parents should understand that the police has no involvement in separation and custody cases, unless there is a Court Order in place or there are clear grounds to believe that the child is harmed in the care of the other parent. Often times, pursuing emergency motions on the day when the child is taken can result in changing the entire course of the case. The police will only become involved if there is a clear Court Order.

Other times, for example in the situation of alleged assault, a different strategy can be implemented by legal counsel to ensure that the situation is normalized as soon as possible. The answer is rarely to involve the police but, inappropriately, there is a recent rise in cases involving situations where criminal charges are laid against one parent in order to obtain advantage in family court.

Parents should take immediate action

Separation from a life partner is already a highly emotional and difficult process. Parents should be well advised that immediate action, if possible even prior to notifying the other party of the separation, can prevent an even more traumatic experience of separation from the children, not solely from the life partner.

**The above is not legal advice. Please contact a lawyer if you seek legal advice.