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Legal Ease
Legal Ease, Lawyer
Category: Canada Law
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Experience:  Lawyer
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My question is about custody. My previous lawyer told me

Customer Question

My question is about custody. My previous lawyer told me that even though i had sole custody of my daughter, as granted by canadian courts, if she at any time resided under the same roof with her father for any period of time over 90 days, that he could file for some kind of temporary custody or stay ...which would prevent me from bringing her back to Canada. What is that motion called? And how long would it take for him to put that in place? I guess what I am asking is if i went to pick up my daughter, would he be able to say I kidnapped her or something? Is my court order still valid after she has lived with him for 9 months?
Submitted: 7 months ago.
Category: Canada Law
Expert:  Legal Ease replied 7 months ago.
I can only answer about the law in Canada. Are you saying she has been there for 9 months for some sort of extended visit or is has his home been her home for these 9 months?Why is she there? Does she go to school there?
Customer: replied 7 months ago.
She went there to finish highschool. She will have completed Gr 11 at the end of May. The original idea was for her to graduate highschool there. But she has changed her mind and is not getting along well with her father and stepmother. She wants to come back home now and complete Grade 12 here in Canada. She has been living in his home there since July 2015.
Expert:  Legal Ease replied 7 months ago.
The law is that the court in the jurisdiction where the child habitually resides is the court that has jurisdiction over your child. So it is not that your order is void but that the father can seek an order for custody where he lives. I don't know the law in the US but I would assume that the court will say that the child's wishes are what governs at this point in time. If she comes back for the summer there is likely no way the father can compel her to return and so long as this is clearly coming from her and not you there is no way that you could be considered as having done anything wrong.

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