What Do You Really Understand About Divorce, The Law And Your Children?

By Cynthia Lauer
What-Do-You-Really-Understand-About-Divorce-The-Law-And-Your-Children
What will happen to the children upon separation?

Ideally, the parents should agree upon a schedule for the children to spend time with each parent, even if the schedule is temporary.

If there are pressing safety concerns, an urgent court hearing may be necessary. Schools, daycares, etc. may require a court order or separation agreement limiting access in order to refuse to allow a child to be picked up by the other parent.

What if we can’t agree about the children?

There are a few ways to deal with this, including:

1. Negotiation: Sometimes, with the help of skilled lawyers, a solution can be found.

2. Mediation: The parents may meet with a neutral third party who helps them come to an agreement. Some mediators may meet with the children, in order to gain an appreciation for their perspectives.

3. Collaborative practice (with or without parenting coach): The parents are represented by specially-trained collaborative lawyers, and an agreement is signed which would require each party to get a new lawyer if court proceedings are started. The parties may then find it easier to negotiate a parenting plan, as they aren’t in a bitter court battle. For difficult issues, they may use expert help, such as a parenting coach or mediator. The coach works with the parents, and the parents sign an agreement that the coach would not be called as a witness in any future court case.

4. Arbitration: This may be combined with mediation, but the process is quite different. In arbitration, the parents are no longer the ones making the final decisions. Instead, they choose an arbitrator, and give that person the legal power to make decisions after hearing from both parties. This is somewhat similar to the court process, although it is private and the parties have more control over scheduling and the selection of the decision-maker.

4. Court proceedings (with or without assessment): In some highly contentious cases, or in cases where safety is a real concern, court proceedings may be necessary. Unlike the other methods, the parents don’t get to choose the outcome, unless they agree to settle the case.

The court is required to base its decision on the best interests of the children, and criteria for determining the best interests are set out in the laws. While the precise criteria varies from place to place, in general the court may not consider parental conduct that doesn’t affect parenting ability. For example, a court should not consider factors such as: blame for the marriage breakdown, adultery, sexuality, religious differences (unless this impacts the child), previous abortions, payment of child support, etc. Judges are also human, and each has his or her own individual style and opinions. For that reason, it is difficult for anyone to predict the outcome of a case with 100% accuracy. Children are very rarely called as witnesses, or asked to speak to the judge. Courts recognize that this would be highly traumatic for them. Instead, courts rely on sworn written statements (called affidavits) from the parents and others. In some cases, the court will want to receive information from an independent assessor, who meets with each parent and with the child, and comes up with recommendations.

What do the terms “custody”, “access” and “parenting plan” mean?

“Custody” refers to decision-making power. While the parent(s) with custody will generally have the child for much of the time, the main difference between a joint custody arrangement, and a sole custody arrangement where the other parent has frequent access, would be the way in which major decisions (including schooling, medical care, religion, etc.) are made.

“Access” refers to the time that a parent without custody spends with the child.

Joint custody is increasingly common. However, it requires cooperation between the parents. In cases where parents are simply incapable of communicating without fighting, or where domestic violence makes joint custody unsafe, the courts may choose to grant sole custody to one parent, with access to the other.

Many people find that terms “custody” and “access” seem harsh and rigid, and can cause parents to fight over who has control over the child. In practice, many parenting arrangements are simply based on what is practical for everyone. The term “parenting plan” is used to describe the parenting arrangements agreed upon by the parents.

Will the courts simply order the children to spend alternating weeks with each parent?

Assuming that each parent is loving and capable, the courts will want to see a parenting schedule that allows the children to spend meaningful time with each parent. However, they are ultimately guided by the best interests of the child.

There are factors which may make a strict 50/50 time split impractical or undesirable. A baby who is being breastfed cannot be away from the mother for long periods of time. Babies also benefit from a stable routine. Shorter, more frequent visits, are often recommended at this age. 2 year olds may benefit from an overnight visit, while older children can handle alternate weekends with each parent. Travelling time is a factor to consider with school-age children, if the parents do not live close to each other.

Cynthia Lauer
Barrister & Solicitor
Meridian Corporate Centre
301-1595 16th Ave.
Richmond Hill, ON L4B 3N9
www.familly-lawoffice.com
Cynthia-Lauer