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Can I take my child with me when I leave my abusive partner?

Both parents have an equal legal right to custody of their child when their relationship ends. No parent has a greater legal right to custody over the other parent, even if they did most of the child care or were abused by the other parent. Only a court order or agreement changes this equal right.

If you leave your partner and take your child with you, your partner might say that you ignored their equal right to custody. Your partner might even say that you abducted the child.

The family court might order that your child be returned to your partner's care if it thinks that is in the best interests of the child. However, this does not mean you must leave your child behind when you leave your partner.

You should talk to a lawyer before you leave your partner. Your lawyer can help you make parenting plans with your partner before you leave, if it is safe. These can be short-term plans that say where the child lives and when they see each parent.

If you don't make these plans with your partner before you leave and take your child with you, you or your lawyer can write a letter to your partner. The letter should say that you want to talk about custody and access issues.

If it is safe, tell your partner how to contact you. Or, tell them that you will contact them within a day or two.

If it is not safe, leave a message for your partner once you are in a safe place. Take steps so that they cannot easily find you.

Your safety plan should include ways to keep you safe when making custody and access plans.

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Next Steps: 

1. Talk to a lawyer

You can talk to a lawyer who can give you some legal information and advice about how to safely leave your home with your children. Your lawyer can help explain your options to keep your partner away from you after you leave.

If you can't afford to hire a lawyer for everything, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with only certain things, like getting a restraining order or drafting a court document.

If you can't afford to hire a lawyer at all, you might be able to find legal help in other places. You can also find emotional, safety planning, and housing help when leaving an abusive relationship.

If you have experienced family violence and need immediate legal help, you may be able to get a family violence authorization form. This form gives you a free 2-hour consultation with a lawyer. The forms are offered through some women’s shelters, community legal clinics, Family Law Service Centres, or by calling Legal Aid Ontario toll-free at 1-800-668-8258.

If you have experienced sexual abuse and live in Toronto, Ottawa, or Thunder Bay, you might be able to get 4 hours of free advice from a lawyer. You have to complete a voucher request form. Or you can call the Independent Legal Advice for Sexual Assault Survivors Pilot Program at 1-855-226-3904 to find out more.

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2. Leave your partner a note

If you don't make plans with your partner before you leave with the children, you can write your partner a note that:

  • tells them what you are doing
  • tells them that you are not abducting the children
  • says that they can see the children, if this is what you want

Make sure to take a copy of the note with you.

If it is safe, tell your partner how to contact you. Or, tell them that you will contact them within a day or two.

If it is not safe, leave a message for your partner once you are in a safe place. Take steps so that they cannot easily find you.

If you have a lawyer, your lawyer can write a letter to your partner. They can then send it to your partner as soon as you leave. This letter should explain the situation and ask your partner to contact your lawyer to discuss custody and access issues.

If you move to a place within your community and you contact your partner as soon as possible after you leave with the children, it is harder for your partner to show that you ignored their equal right to custody by taking the children.

As long as you are not worried about your children's well-being when they are with your partner, it is also a good idea to arrange for your partner to spend time with the children as soon as possible. This also helps to show your partner, and a court if you and your partner go to court, that you were not trying to keep them apart.

If you do not take your children with you

If you decide to leave your partner and you do not take your children with you, your partner might say that you agreed to let the children live with them and for them to have custody.

You should leave a note that says you do not want your partner to have custody. Keep a copy of the note.

If you want custody of or access to your children, or for them to live with you in the future, you should try to stay in close contact with them when you are not living with them.

It is important to take steps to make custody and access plans as soon as possible after you leave. This means either making an agreement or making plans with the help of a family law professional or family court.

Depending on how old and how mature they are, you might want to talk to your children about your plans so that they know that you still love them and are making plans that include them. For example, you might want to tell them about your housing plan and when you think they might be able to come live with you. But be careful not to speak negatively about your partner or involve the children in adult decisions.

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3. Take important things with you

When you leave, try to take these things with you:

  • clothes for a few days, for you and your children
  • your children's favourite toys or blankets
  • things like toothpaste, diapers, and soap
  • money and keys
  • any medication you or your children need
  • any proof of the abuse, such as photos, threatening notes, recorded telephone messages, or your diary
  • names and badge numbers of police officers you have called in the past

Try to take originals of important documents like:

  • documents that prove who you and your children are, for example, birth certificates, health cards, passports, immigration documents, your driver's licence, and credit cards
  • documents from family and criminal court, such as bail conditions, a restraining order, or a custody and access order
  • other documents, such as the deed for your house or lease for your apartment, pay stubs, social assistance cheque stubs, your Social Insurance card, and marriage certificate

If you can't take originals of any documents, try to make copies instead.

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Reviewed: 
May, 2016