Custody and Access Things Certainly Have Changed
When I started practicing law in 1978, the “tender years” doctrine was the reality. It meant that young children were usually placed into the custody of their mothers. Things rapidly changed over the past 30+ years, and now I see very many sole custodial fathers. Also many many couples, if not most couples, have some form of joint custody.
The Maximum Contact Rule is the reality which states that a court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, the Court should take into consideration the willingness of the person for whom custody is sought to facilitate such contact. In other words, the parent who is most likely to facilitate the children being with the other parent, is the one that should be given custody.
The growth in Alternate Dispute Resolution or ADR as it is called is a direct result, often, of parents seeking a better way to resolve issues other than name calling or dragging the other one to court. Alternate Dispute Resolution includes various choices that the parties can make including:
a. Mediation – where the use of a third part neutral assists the parties in resolving issues. The neutral can be a lawyer of a mental health professional.
b. Collaborative Family Law – where the parties each choose a lawyer with special training that points towards conflict resolution as opposed to conflict production and where the parties sign a contract not to go to court and if one of them decides to do so then the lawyers must fire themselves and then the parties have to pick litigation lawyers. Collaborative family lawyers bring a special set of credentials to the table, all of which are aimed at assisting the parties in resolving their conflict by listening to each other, actually hearing each other (which is much harder to do) and the creation of creative settlements using four sets of heads to work out what will end up being an individually tailored constitution for this couple on how to raise their children.
c. Arbitration – if parties are really stuck this option is still outside of the court system, although with a private Judge, but it more closely resembles what would happen in a court of law.
Most battling parents are on the whole very nice people, caught in an impossible situation of wanting their children and being forced sometimes to share them with someone they do not particularly like anymore. The idea is to create a humane resolution which prioritizes the best interests of the children and keeping children out of the horrible situation of hearing each of their parents’ and their parents families bad-mouthing each other.
While child abuse should always be dealt with in court, unfortunately there are allegations that occur of non-existent abuse of children and there are parents who engage in a “win at any price” mentality where they alienate the children from the other parent in an effort to win.
While there are horrible situations of sexual and/or physiological and/or physical abuse, enough that will fill my nightmares for the rest of my life, and while there are situations of abuse that are never reported to the authorities or never properly investigated, the idea of manufacturing false allegations as a weapon aimed at discrediting and indeed destroying the other spouse is itself a crime.
How does a child feel, who is told after years of love and affection by both parents and for both parents, that suddenly one of them is someone to fear and avoid? How can a child view unfair and untrue allegations when we demand of our children that they tell only the truth? Can they trust the unfairly accusatory parent? Will their relationship with the unfairly accused parent ever be the same? Has that child been taught a code of behavior that is frightful by example? If the reality is that winning is so important as to permit any form of conduct, is that not what our children will learn – to win at any cost? That any means are justified?
The Children’s Law Reform Act of Ontario allows for a process where parents cannot agree (and in situations where the court is clearly concerned then this process is ordered), called an assessment of parenting abilities. This assessment also known as a “section 30 assessment” after the provision of the Children’s Law Reform Act section 30 after which it is named, is unfortunately an expensive but sometimes necessary process to weight the bona fides of the parents and their abilities to look after the children, “to parent”, and it measures psychological fitness to parent and decides who is the parent most equipped to parent (sole custody) or should the children be in the care of both parents in some kind of joint custody.
The section 30 assessment is usually conducted by a very experienced psychologist or senior social worker and may include a psychological testing quotient as well as different types of testing interviews and the section 30 assessor will meet with the children as well as the parties and will speak to and also interview if needed third party collaterals. Certainly the children’s teachers and physicians are also interviewed.
In lieu of a section 30 assessment, the courts can also order an Ontario Children’s Lawyer to become involved either by the completion of a social work report or by appointing counsel for the children (if they are a bit older) or having both their own lawyer and social worker involved. The Ontario Children’s Lawyer’s office is a division of the Attorney General of Ontario and they act as counsel for children, not only in custody cases but also in cases involving children’s property and child welfare matters involving the Children’s Aid Society or Jewish Child + Family Services. Their assistance is free of charge and their opinion is usually extremely helpful and is usually highly respected by the court as to their recommendations on child custody and access.
Joint custody where there is no goodwill usually will not work whether it is true 50/50 parenting or the children living primarily with one parent but there is joint decision making on certain prescribed items. There are many different kinds of joint custody.
Where parents really cannot at all cooperate on parenting then there can be what is called “parallel parenting”. Parallel parenting is when each parent parents within their sphere or within their own realm of decision making. For example one parent makes religious decisions and in fact chooses the religion of the children and the other parent may make educational decisions or may decide medical issues. Parallel parenting has each of the parents “do their own thing” because they cannot cooperate with one another and cannot stop quarreling long enough to even discuss the best interests of the children.
Many parents in disagreements about custody forget that this is really about the children and their needs and their best interests.
Effectively children’s desires are very simple. Ideally, they usually want their mommy and daddy back together again and many children for many years harbor a reconciliation fantasy. Failing getting their parents to reconcile, children want their parents to be happy and most children have a great generosity in spirit, once they realize that reconciliation will not take place.
However, children also realize that their bread is buttered on both sides, literally, and will tell both sides what they want to hear in an effort to please both sides, both parents. Behavior can include reporting with great sincerity to both sides that they want to live with each of them and crying whenever they are picked up or returned from being with the other parent.
Children naturally miss the parent they see less of and their displays a clinging affection easily seen as a custodial preference by an involved parent and their lawyer.
It is precisely the wish by children not to lose anyone that makes the concept of some form of shared parenting even joint custody so appealing, in that it minimizes the children’s loss. No one arrangement works in every scenario and the question must be asked: Can two people who cannot cooperate with each other cooperate in the raising of their children?
Frequently now, a Parenting Coordinator is used and that is a professional with a child background, specially trained, who in a form of secondary arbitration working with the existing parenting plan, decides points of contention such as who gets what parts of Christmas when it is agreed that Christmas will be equally shared. This person will also decide who gets what part of the summer if again there has been a decision to divide the summer or that each party get at least four weeks of the summer. Their mandate is in conflict resolution and conflict minimization and they are normally hired for a term of anywhere from a year to two or three years, often that can be extended, and they are paid equally by both sides or in some other percentage subject to the Parenting Coordinator’s right to award costs if one of the parents is being unreasonable.
I must make a statement that children as young as three or four can be aware of manipulation as a workable tool in their favor and even small children can play upon the situation to manipulate both sides and affect both of their parents and their families. The simple fact is that the saddest thing in the world is a child who is facing having their life torn apart. Children fight therefore to keep every available speck of love they can and they easily read their parents’ wish to hear that they are the parent that is loved the best. So maybe it is not a wish to manipulate the situation as much as a desperate wish to hold on to what they had before, or thought they had before, which is security and love.
It should be understood that custody decisions and access decisions are never final and that the court reserves and that parents can, bring back to the court decisions on custody and access. While the courts do not want that done more frequently than every 6 months if at all preventable, a court never loses its jurisdiction, over the children. A change of circumstances always leads to the decision of court being reviewed again. If you add to that fact, that parents often feel that they were pressured into settling or had to settle because of perceived weaknesses in their case, as opposed to the true spirit of compromise the reality is that many parents enter into an ongoing tug-of-war over their children that can last many years. Perhaps the most moving item I have every seen was a picture in a Judge’s office of stick figures, two parents, pulling at the arms of the child and the child rips in half. It was only a picture of stick figures, but I have never forgotten that image and the old adage that a picture is worth 1000 words should be multiplied many times here. Parents must remember that their children are people and that their best needs should be prioritized.