Can I apply in the states for custody and divorce?

Anonymous Asked:

I'm an American who married a Canadian 8 years ago. We had 3 children born and raised in Canada. Never got dual citizenship because never planned on leaving my husband..years of mental emotional and physical abuse. He cheated on me with his best friends wife who was also my best friend... twice in 2 different homes. I found out and had enough.. he hurt me for the last time..i called my mom to come and get me and the kids. I was able to leave because I convinced him it was only for a few days. I don't want to be with him anymore, I don't want to be near him. I don't want to have to go back there to file for custody and divorce...he will go crazy and all of my family and support is here. Can I apply in the states for temporary child custody and divorce? What do I have to do? Also their passports expired I didn't know until coming through border...and the baby will be 1 and no passport. and I have permanent resident card but lost the card.. please advise me what the path is I need to start on...I don't have a lot of time. thank you..

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Andrew J. Kania, LL.B., LL.M.

10 years ago

Answer: Assuming that you are presently in the United States with the children and no Court has yet been commenced in either the United States or Canada, then you need to immediately speak with an American attorney, in the State where you are now staying.

If Court is commenced in Canada, then of course we can assist you.

As a general comment, Courts in Canada and the United States will take jurisdiction over children ONLY IF the ordinary residence of the child is in that Province/State. As an example, if you just left Ontario for New York State, and your husband begins a case in Ontario, then you will likely have to fight the case in Ontario. In contrast, if you are now, as an example, in New York State, and Court is not commenced in Ontario for a significant period of time, then Court would then have to be commenced in New York State, not Ontario, as the ordinary residence will have shifted. This change in the ordinary residence is not instantaneous, meaning that it does take some time. You are welcome to call me at: 1-877-668-9386 for a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. Thus, if you wish legal advice that you can rely upon for your specific case, please contact Douglas Briand for a free consultation).

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