In most cases, children who express a strong desire to change residences usually are experiencing some serious emotional difficulties with the custodial parent.
One of the most common reasons why children express a strong desire to live with the non-custodial parent is because the custodial parent has interfered with the child's time with the other parent, or has interfered with some of their other rights associated with their relationship with the other parent. When a child's needs and desires to be with the non-custodial parent are stronger than the desire to be with the custodial parent, this is a clear sign that the child is having emotional conflict and that something is not right in the relationship with the custodial parent.
Many non-custodial parents lack direction or are afraid to fight for their children's rights. They know what their children want, but are afraid to do anything about it out of fear of reprisals from the other parent or the court for trying to help their child. With bias in favor of women running rampant in our family courts today, many feel that justice will not be served and that the legal costs will only add further burden to their family and ultimately hurt the children. After all, the courts generally like to tell people what to do, not let children tell the court what to do.
Generally, when a child is 12 years of age or older the courts will respect the wishes of that child provided that the child is strong in his/her wishes to want to live with the other parent and the proper steps are taken in preparation. In most cases, the courts as well as police and child welfare agencies will try to intimidate children to go back to their custodial parent (usually the mother) if information is not brought to the courts attention to show why the children should be relocated to the other parent's home. The court generally wants to be reassured that relocating the child with the other parent will be in the best interest of the child and usually will put limited consideration of what the one parent is saying.
When children are between 9 and 12 years of age, the court will be very resistant to a change of residency, but will bend if there is strong evidence to show that the child is suffering or at risk with the parent they currently reside with or where it could be reasonably show that the child's best interests are not being served. With children in this age group it is possible to convince the court, but it takes a much stronger case than with a child who is older than 12 years of age. If a child is very vocal about his/her wishes and is willing to make a stand by running to the other parent's home quite often the court will back off. The court generally does not want to be embarrassed by an order placing the child in the care of a parent and then to have the child run away from that parent. Court orders are made against parents not children, so in reality a child does not have to abide by an order if they don't want to.
Quite often when a child between the ages of 9 and 12 runs away to the other parent's home, the police will be called to apprehend the child. Usually the child will end up being sent back. Once the child runs a second or third time, the police and child welfare authorities will often back off and let the child have his/her way unless the place where the child is running to is considered not appropriate for the child.
Under 9 years of age, it generally takes some real problems, documented by third parties, before the court will allow a child to change residency. The court knows that at this young age, children will often be afraid to challenge the custodial parent so the court knows that it can do what it wants, as the child will often obey.
One quote from a family law lawyer in Ontario sums up the position of the court: "There is not a court in the land that would dare to challenge the feet of a determined 12-year-old child."
Some of the factors that would favor a child's move to the non-custodial parent's home:
That the child is very strong willed and is not afraid to stand up to those who may try to intimidate the child in returning to the custodial parent's home.
The non-custodial parent lives in the same area where the child lives now.
That relocation of the child to the home of the non-custodial parent will not result in the child having to change schools and friends
The child is not doing well in school and it would appear that the environment with the current parent may be partially at fault.
There are older children already living with the parent where the younger children wish to move to.
The non-custodial parent is a woman. There is clearly a bias in favor of mothers in family court, so non custodial female parents definitely have the upper hand.
The non-custodial parent could demonstrate to the court that he/she can better provide for the best interest of the child.
Be able to provide a good, well thought out parenting plan to the court and any profession who may be called in.
You have third party support to help keep the system more accountable.
The child is eagerly willing to discuss his/her situation with the other parent and third parties.
The child has suffers from some form of physical or emotional abuse with the custodial parent and it willing to disclose this to anyone that asks, including outside third parties.
There are other siblings already living with the parent with whom the child wishes to live.
Factors that would go against a child's desire to move to the non-custodial parent's home:
That the child is not very strong willed and is easily intimidated to return back to the custodial parent's home.
The non custodial parent lives some distance away from where the child currently resides
The child is doing well in the current school. (Exception: if moving to the other parent's home will not provide a chance in school, then this would not be a factor)
There are other siblings living with the custodial parent's home and they do not want to move to the non-custodial parent's home.
The non-custodial parent is a father. There is clearly a bias in family courts in favor of mothers, not fathers, so it is much harder for a non-custodial father to get custody or primary care.
The non-custodial parent is not able to show that he/she can demonstrate to the court that he/she can better provide for the best interest of the child than the other parent.
The system knows that you are working alone and have no outside persons watching your case.
THE STEPS YOU NEED TO TAKE
The following is an action plan that shows the steps that non-custodial parents can take to help their child change their residency when factors such as abuse are present. If a child is not being physically or emotionally abused and it is just based on a child's wish, then it is not advisable to follow the plan below but to take matters to court with a properly prepared motion.
Be aware of lawyers and the family court system
This information given below is not legal advice but this plan has proven effective in many cases involving children between the ages of 9 and 12 where factors related to the child's physical and emotional well-being were factors in the child's desire to change residences. Many lawyers would not suggest following this plan and would instead say to take it to court. But remember, it is in the best interest of lawyers to take matters to court because they make money. Following the steps below bypasses much of the court process and allows the non-custodial parent to get control of the situation without spending thousands of dollars in legal fees.
Ascertain the strength of the child's desire to move and the reasons
The first thing to do is to assess how strongly the child wants to live with you and why. If there are valid reasons such as abuse, neglect, etc, then your child's reasons are likely legitimate. If the child does not seem to have a strong position on living with you then you may be going out on a limb if you go to great lengths to facilitate the child's move.
If the child is expressing a desire to move because they are not seeing the non-custodial parent enough, then see what can be done to increase the amount of time that the child spends with the non-custodial parent. Get the services of a mediator or child advocate to deal with the issue with the other parent. If all attempts to resolve the child's difficulties fail, then proceed to the next steps below.
Get a third party involved with the child
Have the child speak to as many neutral third parties that he/she feels comfortable with. An advocacy organization that helps children would be most helpful in this area but you may also take the child to a doctor, psychologist, etc. Even neighbors and friends in the community are good persons providing they are willing to write a letter or preferably an affidavit. If the child is not willing to tell others very clearly or does not sound determined, then your attempt to have the child live with you will likely be more difficult. It is pretty hard to convince a court that a child should live with you if the child is not willing to disclose this to anyone. If there are ongoing problem affecting the child, the child should be disclosing to the third party the incidents, as this will create a clear history of problems prior to you having to take actions.
Decide whether you should relocate to be close to the child
If you are in a position that you can relocate your residency to be close to your child, then do so. Ideally this will make the change of residency easier as the child will not have to change schools or friends. Changing schools and friends can be a factor that works against you. Relocating to be close to the child may not be the best idea if you are living in a location that the child want to come to. For example, the child may have lived in your area prior to being taken out of the area by the other parent. Be sure to ask the child what his/her preferences are before you make this decision.
Prepare a comprehensive parenting plan
Prepare a short term and long term parenting plan for your child. Clearly show how your parenting plan will solve the current difficulties that the child is facing. Make sure that your plan is fair and that it represents the best interests of the child. Have your parenting plan reviewed by qualified third parties and have them endorse your plan ahead of time. Having a good parenting plan in place will look favorably upon you and help the court see clearly that you are a good parent with a good plan for the child.
Have a parenting evaluation/study conducted upon you and your home environment for the child
Have a parenting evaluation done for yourself. If you do relocate as part of your strategy to have your child back with you, then do this after you have moved and are settled. You should be able to show, by a third party report, that your home is adequate to care for the child and that all of the conditions needed to ensure the safety and well being of the child are satisfied. An advocacy organization may also be able to help you with this parenting evaluation as well at a much less cost than a private assessor.
Get your court documents ready
Get your court documents ready. Don't let the lawyer try to tell you that you should not be doing this. This is YOUR child. If you honestly feel that your child is at risk, then you must do what you feel is appropriate for your child. It is not the lawyer's child that you are dealing with. Lawyers generally don't like children walking out as this takes out a lot of the litigation that parents would have to go through. Generally lawyers will tell you to take the matter to court in the normal manner while the child stays with the custodial parent. In this way they are guaranteed lots of work and billing. This gives the other lawyer lots of time to prepare to fight from the other side and possibly intimidate or put fear in you child.
In your court documents you should include your parenting plan, affidavits from third parties who have spoken to the children and your parenting assessment. If you are able to provide the court with a full report including recommendations, then do so. It is also advisable to apply or maintain joint custody, as totally reversing custody is something the court does not like to do on such short notice, especially if the custodial parent happens to be a mother.
If you appear to be fair and reasonable in your proposal with the other parent, it will make it easier for the court to accept what it is that you are asking for them to do. You may also be surprised that the other parent may accept your plan if it is reasonable before you even go to court! The other parent may see that to try to fight such a reasonable position may be futile and expensive through the court. If you and your former spouse live close by to each other, shared parenting may be a viable option to make the child happier and to lesson the possibility of hostility between parents.
Educate your child about his/her rights
Teach your child his/her rights. The child should know what rights they have and what the parents should and should not be doing to them. Often a third party or advocacy group can do this. Having an experienced third party speak to your child will also show your child that you have people helping you and this will make them feel more confident of your ability to help them.
Give your child confidence and reassurance
Reassure the child that you support them. Make sure that you tell them, however, that they can't be running back and forth between parents. Once you start your plan of action, you must be prepared to stick in their. Once the child makes the move, he/she will be looking to you to protect them and keep them from being forced back to the custodial parent's home against their will. Usually a period of time is required for the child to be able to go back and face the custodial parent, once they have revealed abuse.
Teach your child how to reach you in an emergency or whenever they feel intimidated or afraid
Go, with your child over the plan that you have developed to allow the child to come and live with you. At some point, the method upon which the child makes the move from one parent's home to the non-custodial parents home will be crucial. The child must be fully informed on what he/she can do in the event of an emergency or should they be apprehended or threatened by the custodial parent once the action plan has been initiated.
One method is to have the child take public transport. If the child is mature enough and the transportation system safe, the child may be shown how to take public transit to reach your home or the home of an extended family member. Give the child the amount of money needed to catch the transit and be sure to tell the child to put this money somewhere where they can access it at any time.
A second method may be to have the child contact the other parent by phone and have the parent pick them up at an agreed location. The location should be a safe one, such as the house of a school friend, etc.
A third method is to have the child stay at the non-custodial parent's home at the end of an access visit, specifically if an incident of physical or emotional abuse has occurred shortly before the child came to the home of the non-custodial parent.
A friend's home could be a pick-up point. In the event of an emergency, the child would go to the home of a friend and then call the non-custodial parent. If the parents of the friend can be spoken to and made agreeable to have their home serve this function, then all the better.
Inform other family members of the plan
If extended family members are to be part of the plan, then they should be included and prepared for when the change occurs. Be sure that your child has the phone number of grandparents, uncles and aunts who may be involved as backups in the plan.
Tell the child that if they ever feel scared or threatened, they are having their rights violated and that they must take action and follow the emergency plan that has been agreed to.
Get Contact Information for police and Children's Aid
Get the phone number of the local police station and the fax number of the police. Also get the same information from the local children's Aid agency.
Tell the child when to take action
Advise the child to put the plan in place the next time they are abused or threatened by the other parent. Define what abuse is, such as hitting, pushing, being sworn at, threatened, etc.. Just them getting upset at the other parent (such as for being disciplined) should not be reason for them to want to leave the other parent's home.
Put the agreed plan into action
When the child runs away and arrives at your home or the home of an extended family member, have a third party speak to the child on the phone and have the third party tape recorder their conversation with the child. The third party should ask the child why the child ran away and to be ready to disclose this to authorities when they contact the family.
Contact the other parent
Once the child has left the custodial parent's home without the custodial parent's approval, steps should be made to have the custodial parent contacted by third parties, such as a child advocacy agency. Once the parent hears from a neutral party and explained the situation then they are less likely to create problems, such as calling police, for they will know that the situation is being monitored and that the child may disclose things that my not look good on the custodial parent. If a custodial parent has abused a child and they are told that the child has disclosed this to third parties, the custodial parent may be more inclined to work out a reasonable settlement before police and child welfare agencies become involved. Remember, the bottom line is to get the custodial parent to improve their parenting, hopefully to the point where the child will not be afraid to resume a normal, healthy relationship with the former custodial parent.
Get ready for the police and their intimidation tactics
As soon as possible after the child has arrived, have the third party contact the police and advise them of the situation. Make sure that the police are told that the child is safe and in good hands. If you are anticipating problems with the police then leave the premises with the children and contact the police using a cell phone. Leaving the home and being on the road will prevent the police from coming to your home unexpectedly.
Ideally, a fax sent from a credible third party to the police will put the police on record as being advised of the situation. The third party should contact the supervisor who is on duty and personally advise him/her of the situation and get some indication of what the police will do if the other parent calls them. Tell them that the matter is ready to go to court within the next day or two. Send the police any information to support your concerns for the children.
Hopefully, the police, if they are given good information from a good contact person that the matter is going to court, will not find it necessary to come to the home and will tell the other parent to deal with the issue in the court. Generally, the police do not like to get involved in domestic matters, especially when they see that you are well prepared and have neutral third parties involved to witness matters.
If, however, the police decide to come to the home, then be ready as well. If you have left the home for the day, you will be able to make an appointment with the police to come to your home. Making an appointment will allow you time to plan for their arrival. When police do arrive do not allow any more than two officers into the home. Tell them that you don't want the children to be upset with too many officers in the home. If you allow too many officers in the home then they may get more assertive. Its better to have lots more witnesses than police and lots of video's running. This will keep the police polite and accountable.
If you are a father, often the police will often try to intimidate you to return the child to the other parent. But do not let their intimidation tactics work on you. Have as many third party witnesses present and family members if possible. Be sure to have someone with a video camera and another person with a tape recorder present. Set up the video recorder in an area of the house where you will bring the police into or have one of the witnesses carry around the video with them so that everything the police say and do will be recorded. Be prepared to show them court documents and third party reports where the child has indicated why they do not want to go back.
When the police come to the door, ask for their business cards and badge numbers before they enter the premises. Ask the officers by whose complaint they are responding to. Advise officers that they may enter for the sole purpose of speaking to the child but only from a safe distance.
Have the child prepared to tell the police that they will not go back and to keep their distance from the officers. Let the officers ask the child any questions but do not allow the officers to be alone with the child where the officers may be physically able to grab the children and walk out of the home with them. Officers have no rights to interrogate your child without you being present. With witnesses present and with a child clearly telling officers that he/she does not want to return to the other parents home, it is not likely that any officer will want to get involved in the matter, once that they see that the child is safe. If officers get overly aggressive in an attempt to intimidate you, then ask them to leave and forward a complaint letter to the Chief of Police and copy your letter to as many interested parties as possible.
As a last resort the children my be advised that they can lock themselves into a room in the house such as a bathroom. Although this would be very rare, it would be most embarrassing for the police to have to break down a door where a young child was being forcefully taken away by the police, especially when this is being recorded. Any police officer that would go to this extent to apprehend a child would be crazy as this would make great news in the media to see police hauling away a young child who only wants to stay with their parent.
Watch out for Children's Aid Agencies
Sometimes when you call the CAS to inform them of what you are doing to protect the child, they will ask that you take the child into their office for an interview to confirm what the child's wishes are. They will tell you not to worry and that they must hear what the child has to say and that they will support you. But beware!
Whatever you do - DON'T GO IN! Often what CAS will tell you that they want to take the child into a room to speak to one of their own workers. They will first separate you from the child and have you wait in their nice waiting room and then take the child into an interview room which has a second door. Once they have you separated from the child they will take the child through another door and from there back to the custodial parent's home. They will then come out and tell you that the child is back with the custodial parent and that they are obligated to follow the court order and inform the custodial parent. Quite often they will even call the custodial parent and have them wait secretly in another room while you bring the child in to their facilities. Many times children are swept right back into the hands of an abusive parent. If child protection agencies ask to interview your child then have them come to your home under the same conditions as the police. Have witnesses and third parties present and tape recorders rolling.
Deal with the other parent
Once the plan has been initiated, the other parent should be contacted and the situation explained to them, preferably through a neutral third party. The other parent is less likely to show up at the door to create problems for you and the child if they are aware of what is going on and if they know that neutral third parties are involved with the matter and monitoring the situation at your home.
Have the third party tell the other parent the reasons why the child has run away and that it would not be a good idea for the parent to come rushing to get the child as this will only upset the child and create a bad situation. Try to get the other parent to enter into mediation or conflict resolution as soon as possible to try to resolve the problem. If the other parent is willing to sign a document stating that they agree not to take the matter to court and will agree to a full review of the circumstances and are willing to leave the child in your care, then you may hold off going to court. Be sure to get any agreement signed and witnessed.
Take the matter to court
If the other party is not willing to negotiate in good faith and provide reassurances that they will not take the matter to court, then be ready to take the matter to court the very next day that the court is open. Have your lawyer ready to go with the court papers. It is important that you file court papers first. If possible, attempt to obtain an ex-parte interim motion to allow the child to stay with you for approximately 1 to two weeks to give the other side a chance to get ready. It is to your advantage to hire a lawyer in court as the courts do not like to see self-represented person beat members of the bar. It doesn't look good on the legal profession. Remember that a judge is nothing more than a former lawyer and he does not want to make his colleague lose a case to a self represented person.
In your motion, make the following arguments:
Explain to the court that there have been ongoing difficulties between the child and the other parent that has been going on for some time but that it was the immediate situation that has prompted this emergency action.
That an interim order to allow the child to stay is in the best interests of the child as the child has run away and is fearful to return.
That the other parent may forcefully apprehend the child at school or create an incident at the child's school and that this would not be in the child's best interest.
If you have done all your preparation work and have followed all of the steps listed, you should be able to make a good case to the court and have a good chance of a successful outcome. The only other battle you have is to beat the bias in the court system itself, but there are other guidebooks that give you help with that.
And remember one important thing - even if the court does not support you, they are powerless to stop a young child from continually running away from another parent's home when there is reasonable evidence to show that the other parent has a supportive environment for the child. Without exception, the courts will eventually give up trying to force a child to remain in the home of a parent that the child clearly does not want to stay and reasonable evidence would support the position that the parent is behaving in a hostile and aggressive manner to the child and other parent.
Original article by Canadian Families Against Abuse by the Legal System - Revised February 2000