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That is exactly what you should do.
This can and likely will take a year or even two.
So applying to sever the divorce from the other issues makes the most sense and you have a good reason to want to do so.
You also have the grounds so for the divorce itself there is nothing to contest of course.
In Canada a separation agreement is not binding as it relates to custody or access. That is because the only thing a court will ever consider when dealing with custody and access is what it finds to be in the best interests of the child.
So in Canada if the father says the child is not safe in his new home the Court will hold a trial and you will each have to prove what you want is in the child's best interests.
The Court in Canada will not have jurisdiction over the child if the child habitually resides in the US.
So you may have an argument that the move was permanent and so the child now resides in the US and the father has to deal with this in the court in the US>But waiting for a while to deal with custody is a good idea because not only are you further establishing the status quo and courts don't like to interrupt the status quo but you are making it harder and harder for the father to convince the court in Canada to assume jurisdiction.
I don't see the reason why you cannot seek to sever the divorce application now though. I cannot really think of a reason.
There is no way this case will be dismissed if it's about custody and the father can show that there has been a material change of circumstance since the agreement was signed. I am not saying you will not win or that this cannot be settled before but the father will have his day in court I am sure.
She can seek to sever the divorce now as it has nothing to do with the custody issue except if she is thinking that since your case grows stronger with the passage of time there is no reason to try and give the father a reason to rush.
That may be true and if it is then you should wait.
It won't hurt your case in the sense that there is nothing wrong with severing your divorce. It is just that the longer you wait to get the court to deal with the custody issues the stronger your case is.
But there is another concern. As you are only on a visa it is not likely possible to successfully argue in Texas or Canada that the child habitually resides in the US as that is not the case where you have such a limited legal status.
OHThat is great to hear this. I thought your child and you moved their recently. Phew.
She has to serve your ex with the application to sever and he can ignore this or contest it.
If you are going to be deported from the US what choice do you have? You cannot take that chance.
I don't know if your lawyer can get into the court that quickly. At this time of year the legal system shuts down. In family law unless you have an emergency, such as one parent denying the other parent holiday time with the child for example nothing is going to happen until the new year.
So my concern for you is the timing as I know the time is of the essence.
No. Your lawyer can get around that. As it is an urgent matter that you marry the lawyer can get into court urgently by bringing an urgent motion to the court to sever the divorce application from the other issues.