Hi! I have a question regarding what my legal rights are!

Both you and your spouse have equal joint custody to the children and for decision making on their behalf. So until there is a written agreement or court order setting out who has sole custody, or what any parenting schedule will be or who will have primary care/residence of the children, you will each have equal rights to care for the children. You have the legal right to remove them from the home, but your husband would have the legal right to return them to the home. This is an obvious unstable situation for children to be in such a tug of war, but aside from an agreement or court order, the rights remain equal.

It is possible to apply to the court to seek an interim order for parenting rights that would allow you to move from the home with the children. That can be obtained generally within a few weeks of applying (more quickly if there is an emergency or the children's safety is otherwise threatened), and would remain in place pending a final order made after a full trial.

A court in making any such decision will look at factors affecting the children and their welfare, but probably the single most important factor may be who has been caring for the children up to this point. If you have been taking care of the day to day needs of the children, it is more likely the court will opt to continue that stability. Verbal abuse towards a spouse can be a factor in determining custody or parenting arrangements, as this can clearly impact on the best interests of the children.

You have the legal right to leave with the children, but doing so without written permission or court order can put you on the defensive if your husband then applies to the court, as a court can be critical of a parent for moving the children out of the family home without having permission (unless there is an obvious emergency reason for doing so like physical abuse of the children). Plus your husband would have every right to pick up the children and return them to the home.

You can certainly have a legal separation agreement that defines the role each of you will have on an interim or short term basis. But your husband must be willing to sign such an agreement. If he does not, a court application would be the only other legal way to give you rights to the children above over and above the rights your husband has.

The concern the boys express will be a factor in determining the parenting arrangement, but unless they are quite old and mature (usually about 16 years of age) the court will not allow them to make a decision as to where they will live. The younger or less mature children are, the less likely a court will be to put much weight on their opinions, as these are too easily influenced and children often do not know what is in their best interests. Children of 10 years age and younger generally will have very little input into any parenting decision.