One of the most common questions parents ask when separating is what will happen with their kids. If parents cannot agree on parenting issues, such as who will make major decisions for the kids, where will they live and how often will they see each parent, the courts will decide these based on what appears to be in a child’s ‘best interests’.
It is a common misconception that custody means physical custody of the child, or who the child lives with. ‘Legal custody’ actually refers to who has authority to make major decisions relating to the upbringing of a child on issues such as education, medical care, religious upbringing and major extra-curricular activities. Physical custody is often referred to as ‘residence’. In a joint custody arrangement, both parents have the authority and must agree on major decisions relating to their child whereas in a sole custody situation, only one parent has such decision making authority. Who has decision-making authority is a separate issue from a residential schedule for a child.
Speaking with your Children about Separation
Discussing the details of your separation with your children is frowned upon by the courts, even with teenaged children. This does not mean that you cannot or should not tell your children that you are separating, but when you decide to have that conversation, it should be done in a neutral manner. It is very easy for parents to become caught up in a parenting dispute, and to either discuss ongoing issues with their children, or to discuss matters with other adults at home or on the phone within ear shot of the children. This often gets back to the other parent, making it more difficult to resolve disputes. The best approach for parents to take is not to speak about separation issues directly with the children or within their earshot. Our family lawyers can help you find appropriate resources available to help resolve parenting disputes, such as parenting mediators, child psychologists and social workers who specialize in children’s issues arising from their parents’ separation.
Moving Out of the Family Home
If you move out of the family home without your children, you may be prejudicing your rights to their custody or to an adequate residential schedule with them in the future. Conversely, you cannot move the children out of the family home without the other parent’s consent or court order. In certain situations involving physical or emotional abuse, a parent may have good grounds to leave the family home with their children without agreement, but this needs to be handled carefully, and you should get advice from a family law lawyer as soon as possible.
Holidays can be a contentious time for separated parents. There is no preferred access schedule for separated parents to follow when it comes to holidays, and the schedule included in a parenting agreement largely depends on where the parents live, what their traditions are, and what is in the best interest of their children. If you don’t have a clear agreement on how to share holidays with the children and your former spouse, you risk disappointment for such special times during the year. Our family law team can help you in negotiating and creating such agreements.
In Ontario, grandparents do not have a presumptive right of custody or access to their grandchildren. This means that if the parents separate, or one dies, or a grandparent becomes alienated from their grandchildren for other reasons, there is no automatic right that grandparents have to contact with their grandchildren. However, a grandparent may apply to the court for an order for custody or access to a child. When determining if a grandparent should be granted custody or access to their grandchildren, the court applies the same test it always uses when determining custody and access to a child. That is, whether the order will be in the best interests of the child. Grandparent rights are complicated and you should get the assistance of a family law lawyer to help guide you through the process.
Enforcing Custody and Access Orders
There are a number of ways for parents to enforce custody and access orders in the event that the other party is not cooperating with a parenting schedule. A court order is expected to be obeyed, and failure to do so can result in serious consequences for the non-compliant parent. These consequences can include contempt proceedings, which can result in a financial penalty, and in rare cases, a term of imprisonment. Failure to abide by the terms of an order could also result in a review of the existing parenting provisions. Police enforcement of custody and access is available where a court order provides for police enforcement, or when there are reasonable and probable grounds to believe that a child is at immediate risk of harm or is being unlawfully withheld.
Changing Custody and Access Orders
Circumstances change, especially when children are involved, but when a court issues a custody and access order, it is meant to be final unless it states otherwise. The order cannot be changed simply because one of the parents is not satisfied with the ruling, and seeking a change can be a complicated matter for which comprehensive legal advice should be obtained. The primary threshold to meet if you wish to change a custody or access order is proving that there has been a ‘material change in circumstances’ of the children which warrants a change. A material change has been interpreted to mean a significant change in the child’s life since the last custody order was made or an agreement for custody was entered into by the parties, which was not foreseeable at that time. The change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way.
Nelligan O’Brien Payne’s family lawyers offer the full spectrum of family law services.
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