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For Childrens Sake

For Your Childrens Sake: Child Custody and Access

One of the most devastating things we can do to our children is involve them, intimately, in a custody/access battle between two separating parents. The animosity the spouses feel towards one another often blinds them to the emotional and psychological harm they are doing to their children. Most parents do not intend to use their children as pawns. Unfortunately, some do.

In my family law practice, custody and access issues loom. Many lawyers believe that a settlement which can be reached by the parties themselves is far better than one imposed by the Court. If the parents can get along enough to realistically and rationally look at their children’s needs and how all relationships interact, then any agreement, even in part will benefit the children. Sometimes parties need some assistance in coming to an agreement and putting that agreement into writing. This is where lawyers, social workers, counsellors, mediators and sometimes the Court can be of assistance.

Whether you have a sole custody arrangement or a joint custody arrangement, there is always a custodial parent, a parent whom the children reside with and whom is responsible for the day to day decisions. The access parent will be allowed access to the children as liberal as possible in most cases, depending on the children’s schedule, the parent’s schedule and depending on the children’s age their wishes. Only when there has been abuse or the possibility of such will the courts interfere or set conditions on a parent’s access. Joint custody is a contractual access arrangement and the Courts will not order a joint custody arrangement if one of the parties do not want it or it is not in the best interests of the children. The access parent usually seeks joint custody under the fear that all his/her rights to the children will be lost otherwise. I have seen many occasions were one parent had sole custody and the access parent had more access than if it had been a joint custody arrangement.

There are several ways separating parents can deal with the custody/access issues. The best way is to work something out between themselves. In doing so, remember, children need to have some stability in their lives. They need to know where they are living, where they are going to school and who will be home when they get home. Children need to know when their access is with the access parent and it is very important not to disappoint them by coming late or failing to show at all. Any agreement mother and father can come to must address these issues.

Due to the pain and animosity felt between separating parents, sitting down and working out the details may not be easy or even possible. Don’t be afraid to ask for help. There are many ways an agreement can be reached with a minimum of outside intervention. One way is through counselling or mediation.

Mediation is the act of interposing between two contending parties to effect a reconciliation. A mediator/counsellor can also assist the parties in reconciliation talks much like a marriage counsellor but more often a mediator helps the parties deal with separation and the many issues facing them. A mediator attempts to get the parties talking to one another, to find common ground and concerns, and eventually working out an agreement. Even if a partial agreement is all that is reached that lays the groundwork for the separating parents to see how things go making it easier to have further discussions down the road. A mediator’s recommendations towards settlement is not binding on the parties and if one or both parents do not feel comfortable with what is being suggested they can have the matter decided by other means.

Sometimes custody/access arrangements can be made through arbitration. Arbitration is the same as mediation except that the arbitrator has the power to make a decision after hearing the contending parties. Where a Mediator tries to work with the parties to get an agreement, an arbitrator can force a solution to the parties problems. The separating parents would have to agree that whatever decision the arbitrator comes to (with a few exceptions) the parties will adopt and follow. This is the closest to having an impartial third party decide the issues without going to Court.

Lawyers can assist in counselling, mediation, arbitration, drafting custody and access agreements or going to court. Most agreements between estranged parents are through the negotiations of one or more lawyers. Fewer and fewer cases are going to court and more are being resolved using negotiation and mediation services. Although there are still some lawyers who can be classified as hired guns, with the win at any cost attitude, many lawyers are taking a more holistic view to family law issues and looking not only at the best interests of the child but also that of the family. Lawyers and parents are realizing that working together at an agreement is in the best interests of the children and going to Court is becoming the avenue of last resort.

There are a lot of give and take in negotiating a resolution to the issues of custody and access. Whenever two parties negotiate towards a common goal, there is always the possibility that everyone can win, especially the children. When you go to Court, you win small or lose big but normally no one walks out happy. After the evidence is presented by both the parties or their representatives and based on the best interests of the child(ren), the judge will make his/her ruling which, subject to appeal, will have to be obeyed by the parties. More often than not negotiated agreements tend to stand the test of time where Court imposed agreements tend to be varied often or not honoured at all.

But what happens if Court becomes the only option. There are two levels of Court which deal with custody/access issues. The Ontario Court of Justice(Family Division) or Family Court and the Superior Court of Justice. Family Court can deal with matters such as custody, access, and support. Family Court cannot deal with property division, pension splitting or equalization of the net family property nor can it grant a divorce. These latter issues as well as those of custody, access and support are dealt with by the Superior Court. In some jurisdictions there exists the Superior Court of Justice (Family Division) (also known as the Unified Family Court) which is a combination of the other two levels of court. Family court does have the advantage that there are no court fees and the issues and procedures are kept relatively simple. You can have a lawyer represent you or you can represent yourself. In many jurisdictions the Ontario Legal Aid Plan provides free legal counsel at Court to assist unrepresented persons and give general advice. Accordingly Family Court tends to be less formal but also more back-logged. If something needs to be done in a hurray, Family Court may not be the quickest forum to do so.

Superior Court of Justice, on the other hand, is not for the faint of heart. Although you can represent yourself this is generally ill advised at this level. The Court costs are high and this level Court has more rules which are rigidly enforced. Costs and the complexity of the proceedings are among the serious drawbacks at this level of court. The advantages, however, are twofold. First this level court can deal with all the issues which usually arises from a dissolution of a relationship. Second, matters can be brought before the Court fairly quickly and usually in a matter of days. This is of infinite assistance to a spouse whom has the children and is left to fend for themselves without support.

It is always good advise to seek legal counsel when it comes to custody and access of your children. Even if you and your spouse are amicable towards each other and are able to work things out with a minimal of outside intervention, know your rights – do it right. When seeking legal advice shop around for “your” lawyer. You must feel comfortable with your lawyer and in the advice you receive. For every client’s personality there is a lawyer out there whom is well matched. You may feel very uncomfortable if your lawyer wants to take all the matters to Court and you believe a settlement conference can clear up most if not all the issues. Or visa versa. Make sure your goals are compatible with the type of lawyer you pick.

For every client I have had ask how much will it cost, I wish I had a dollar. No one can tell a client the exact figure or cost of a particular case from start to finish. My well rehearsed answer is “if the other side lays down and dies after I send the first letter the costs will be minimal. If s/he fights it all the way to the Supreme Court of Canada the costs will be tremendous”. Although most lawyers will give an estimate on certain procedures, such as drafting an uncontested separation agreement or obtaining an uncontested divorce, usually your lawyer will quote an hourly fee and charge you for the actual services performed until the matter can be resolved. Once fully embroiled in a custody/access battle, the costs soar out of control and can be in the tens of thousand of dollars on those issues alone. Children bring out the greatest of emotions in parents; the most devastating of all, over possessiveness and the fear of losing them. If one party believes they have been taken advantage of when it concerns the children, no agreement or Court order will endure.

Now you may have noticed that although this article is subtitled “For Your Childrens Sake” I have not spent a lot of time on the issues of the children. This article has been a quick overview of the process. Separation is the dissolution of the marriage and not the family. Your children will never be happy unless you can make the overall family situation better and workable. If the separation is particularly painful for your children, work together to help the children understand and get through it. Seek outside counselling for you, your spouse and your children. These will always be both your children and you will be their parents. The groundwork you lay down now will affect how unhappy you and your children will be in the future.

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