In 2014 the English legal system abolished the concept of "child custody orders" in favour of rather inelegantly titled "child arrangements orders." It likewise abolished the "custodial parent" term in favour of "parental responsibility." It's a whole lot harder to yell: "damn you, I'm going out to get ... a child arrangement order ... and take parental responsibility" in a threatening kind of way than if the word "custody" was used repeatedly in those threats.
Who gets the kids has been a prime legal battleground throughout the history of divorce and separation, with highly variable results notwithstanding the "best interests of the child" test. A full 37 years ago, Psychologist Mary Ann Watson in the journal Family Relations published an article entitled "Custody Alternatives: Defining the Best Interests of Children" which explained: "Until the 1920's Anglo-American law had no difficulty in resolving parental disputes concerning custody. It was presumed that custody should go to the fathers as head of the family. The mother was a legal non-entity. Then, as ideas about the crucial role of the mother in child rearing became more widely accepted, courts altered their views to a presumption that the child belonged with the mother. Thus, in more recent years, the custody of approximately 90% of children of divorced parents has been awarded to their mothers ... [but] there have been a growing number of parents who have been advocating a more balanced solution to the question of custody."
In more recent decades "shared custody" and "joint custody" have become in vogue, because of better understandings that the best interests of the child involve maximizing contact with both parents. But the persistence of the word "custody" might still engender conflict. Is it time to semantically clean the family law house in Canada? Should we stop talking about supposed winners (those who get "custody"), and losers (those who get something called "access"), and instead just talk about the end result of best interests of the child?
What means Are Available for Arriving at a Child Arrangements Order?
There are four ways to determine how much time a child spends with each parent post-separation, and who makes which decisions concerning a child's life: by agreement of the parents Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agree largely depends on the ability of parents to communicate and the need for future enforceability (the more formal the agreement, the more enforceable it will be). Negotiation, mediation and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.
What Does Best Interests of the Child Really Mean?
The federal Divorce Act at s. 16 considers the best interests of child to be “as determined by reference to the conditions, means, needs and other circumstances of the child.” Courts are prohibited from taking past conduct of a parent into account in determining child custody arrangements unless relevant to ability to parent. Sub-section 16(10) of the Divorce Act promotes maximum contact with each parent.
The Ontario Children’s Law Reform Act governs the best interests test when there are no divorce proceedings. That provincial Act is more explicit than the Divorce Act in defining “best interests” as including the child’s preferences, stability of environment, and abilities of parents.
Although courts used to rely quite a bit on experts in determining what "best interests" amounted to, increasingly judges are just using their own experience to make such determinations, which are guided by a lot of common sense, as foreign a concept as that might seem to a formal legal process.
Are Courts keen to Make Family Assessment Orders?
While a court may order an Assessment of the needs of the child and ability and willingness of the parties, such assessments are time-consuming, expensive, intrusive and will not finally determine custody and access issues (which are left to the court to decide).
A court order may also be sought to involve the Office of the Children’s Lawyer, either to have a government-funded lawyer appointed to represent the interests of the child (unlikely if the children are very young and can’t express preferences), or to have a social worker assigned to conduct a Clinical Investigation which will be similar to a Custody and Access Assessment except be funded by the government. However the Office of the Children’s Lawyer can decline a file, which it often does.
Don't count on a court being convinced it needs expert evidence to determine what best interests amount to. Instead, provide the court with the most detailed picture possible of what you belief the child's life should look like and why.
Five Legal Lessons of Child arrangements
While it's hard to say whether people fall to fighting more over money or children when relationships break up, it's certain that disputes over children have the potential for lasting much longer and taking a much greater emotional toll than money fights. Among the prime legal lessons of child arrangements for separating parents who want to maximize contact and minimize conflict are:
- try to take an objective view of what others will perceive to be in the best interests of the children;
- structure your proposed parenting plan around those best interests;
- don't take an extreme position that forces a court to be the final decision maker about those best interests, instead be proactive in attempting to agree on a plan that is acceptable to both parents;
- use every ADR tool available to retain some control over the form the final arragements will take and to limit your legal fees;
- it will be expensive, time consuming, and difficult to enforce every detail in a child parenting agreement through a court, so if you run into compliance difficulties consider returning to those ADR tools and use the courts as a last resort.
Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages. Learn more at www.nofearfamily.com.