Children are often the biggest casualty when their parents file for divorce. Their physical safety, emotional well-being and financial security are a huge concern for parents. However, the disputes and acrimony between parents can sometimes relegate the issues facing their children to the back-burner, with disastrous consequences.
In Canada, as in many parts of the world, courts focus on the best interests of the child, no matter what the issues involved.
Often, parents themselves prefer to protect their children and keep their own acrimony aside, otherwise it can become an extremely destructive and difficult situation.
Experienced child custody lawyers, family lawyers and divorce lawyers can ensure that matters are worked out keeping the child’s interests paramount.
When the divorce case comes to court, judges usually rule after considering:
- Best interests of children, especially when they are very young
- Primary care-giver
- Relationship between each parent and child
- Parenting skills of both parents and their emotional, physical and mental status
- Work, education and leisure schedules of parents and children
- Availability of support-systems in the form of grand-parents and close relatives
- Separation/non-separation of siblings
- Age of child: Above 12, the wishes of the child are taken into consideration while awarding custody
- Past behaviour of parent is not usually considered unless it has an impact on their parenting abilities
A compassionate and equitable approach is required in such situations, which can be provided by an experienced, knowledgeable divorce lawyer or separation lawyer.
Custody and Access
Custody and Access orders are obtained under the Divorce Act.
“Custody” is the right to take physical care of the child and make decisions regarding health, education, safety, religion, welfare etc. The child has a right to have a relationship with both parents. Joint or sole custody may be awarded based on the circumstances.
Since the child has a right to have a relationship with both parents, judges give access to the other parent. Access is the right of the child and not the parent. Visitation rights, right to make inquiries, be informed regarding health, education, welfare etc of the child, physical time alone with the child are components of access.
Custody and access of children may be granted to those who stand in place of biological parents if they are deemed sufficiently entitled and capable.
“Best interests of the child” would include protection of the child’s physical, emotional and financial security and well-being. The need for stability, history of care, linguistic/cultural/religious heritage, spiritual upbringing and value-systems, history of violence or abuse, relationship and bonding with the child, plans for education and training, views, preferences and wishes of the child above 12, parents’ ability to co-operate and share the child’s best interests.
When custody orders are in force, it’s important to follow all the rules and never remove the child to another location without permission.
Parents who are unhappy with the court’s decisions can appeal. These orders are not permanent and can be changed by the courts. If there is a change in the parent’s life/circumstances, or orders are not being followed, the other parent can apply for a variation.