When families with children go through a separation and divorce, the fallout for all parties can be severe. The adults have to deal with legalities and emotions, and the children have to reconstruct their world now that mom and dad are no longer together. The anger, frustration and pain experienced by adults can often become seemingly insurmountable and all-consuming, to the exclusion of everything else. When the adults are in too much distress to parent, it is the children who suffer the most. Not only has the children’s world changed overnight, their parents have been transformed from the (generally) loving and caring unified front presented to children in healthy families into weeping, erratic and hostile people who have no energy or ability to focus on the needs of their children beyond basic daily routines.
When adults take their issues into the legal forum, with its inherent delays, high costs and frustrations, irreparable damage to the children may be caused. A prolonged and angry legal fight between the parents is one of the major indicators of severe distress for the children involved. Children are robbed of years of healthy development while their parents continue the fight. The requirements of a court action almost mandate that children become pawns to be used by the battling parents, with the single goal of ‘winning’ sole custody, often not for the child’s benefit but more to reaffirm a parent’s sense of self-worth. It only takes one parent to choose to conduct a prolonged legal fight for both of them to be embroiled in years of turmoil. It is a small wonder that some parents walk away from the battle rather than see their children used as pawns.
THE LAW
The legal parameters for the custody of children are contained in the phrase “best interests of the child”, which is set out in the Federal Divorce Act and in legislation pertaining to children in each province. Using legislation in Ontario as an example, the Children’s Law Reform Act, Section 24(1) states that the ONLY test, and a mandatory one for a court to apply, is the “best interests of the child”. Section 24(2) requires a court to take the following factors into account when applying the test:
the love, affection and emotional ties between the child and (a) each person entitled to or claiming custody of or access to the child, (b) other members of the child’s family who reside with the child, and (c) persons involved in the care and upbringing of the child;
the views and preferences of the child in situations where such views and preferences can be ascertained reasonably;
the length of time that the child has lived in a stable home environment;
the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs;
any plans proposed for the care and upbringing of the child;
the permanence and stability of the family unit where it is proposed that the child will live; and
the relationship by blood or through adoption order between the child and each person who is a party to the application.
When a judge applies these factors to a contested custody situation, the test is very subjective and case-specific. Each child’s situation is judged on its own merits, and judges are concerned with crafting an outcome that is manageable for the family involved, but one that also meets all of the mandatory test factors, which are not ranked in any order of importance. The judge reads written evidence from the parents by way of formalized affidavits (sworn statements), and hears arguments presented by the lawyer for each side as to why one outcome or another should prevail. The pressure on parents to embroider the facts to create more persuasive evidence for the judge to consider is a feature of the adversarial system where there are winners and losers. Once a judge makes an order where one side knows he or she has ‘lost’ rights or status as a parent, the possibility that the parents will start working together for their children’s sake becomes increasingly remote. An aggrieved parent may be unable to accept the outcome because there has often been too much emotional investment in ‘the fight’ for it to end easily.
This article focuses on four of the most common factors for determining the “best interests of the child”.
CONCEPT OF ‘TENDER YEARS’
Section 20 of the Ontario Children’s Law Reform Act states that “... the father and the mother are equally entitled to custody of the child.” Despite the fact that all of the legislation is written in gender neutral language, the view persists among many judges that young children (of tender years) belong with their mother, particularly where the mother has been the primary caregiver since birth. Section 24(2)(a) provides impetus to the courts to consider emotional bonding by a child with a parent and, of course, the very young child may well have a greater bond with the mother due to biology (eg, breastfeeding), and the social reality that it is overwhelmingly mothers who take time off work to care for young children. This physical and social reality leaves many fathers at an inherent disadvantage when they go to court to seek custody of young children. It may also contribute to the high ‘absentee father’ rate after separation when the parties have resorted to the court system instead of negotiating with each other the terms of their continuing parenting arrangements.
DEVELOPMENT OF STATUS QUO
Section 24.(2)(c) refers to “the length of time a child has lived in a stable home environment.” When a couple separates, and one of the parents actually leaves the family home, and if the children remain behind with the other parent, even temporarily, a ‘status quo’, which is extremely difficult to change, is established for custody determination. A parent may leave the home in good faith, perhaps relying on a verbal agreement and intending to put in place a shared parenting arrangement, only to find out that his or her parental rights are severely and adversely affected by default, even if the status quo has been in place for a few weeks. If a court application is made on an interim basis, it is highly likely that the children will remain where they are residing, as long as they are doing reasonably well, because a judge is required to support stability for the children. The longer a status quo remains, the harder it is to change. In effect, the interim order may be the end of the story as far as custody goes.
THE WISHES OF THE CHILD
Section 24(2)(b) requires a court to consider the preferences of the child regarding to custody. Children are no longer required to go to court to outline their wishes because this is clearly not appropriate. Instead, the judge hears evidence from the parents, which may reflect two very different realities, and judges are unwilling to make long reaching decisions for children based only on such conflicting information.
Parental alienation
The preferences of a child have to be put in context because parents often engage in various behaviours to convince the child to remain with them. These behaviours may be subtle and partly unconscious on the part of a distressed parent. Other parents may conduct a rigorous campaign to alienate the child from the other parent, careless of the damage that this may cause to the child. The parent in this type of case cannot see any difference between his or her own emotional needs for revenge and validation, and the child’s needs. Seeing a child demonstrate the symptoms of ‘parental alienation’ is a terrifying example of the power that a parent wields over a defenceless child. The child will speak in age-inappropriate language, and often recite a litany of wrongdoing by the hated parent, including trivial matters or incidents that the child could not possibly have known about. Severe examples of parental alienation are not amenable to treatment, and it often takes years of therapy as an adult before the child can overcome the patterning of hating one parent, which was inflicted on him or her by the other parent. Where judges are aware of this situation, they may try to remedy the outcome by giving custody of the child to the ‘hated’ parent. But if there is any access to the alienating parent or the patterning has persisted for any length of time, it is unlikely that the new custodial arrangement will work well for either the child or the parent.
Children’s lawyer
The “views and preferences of the child” can sometimes be hard to know in situations where each parent claims that the child wishes to live with him or her. More objective information can be obtained by the appointment of an independent children’s lawyer, which is made through a provincially funded program in some provinces. Specially trained lawyers represent the child, and try to ascertain his or her wishes. The Office of the Children’s Lawyer in Ontario also has a panel of social workers that work with the children’s lawyer to provide evidence for a judge to consider in court.
Where there is overall disparity in each parent’s evidence about the factors in the “best interests” test, the court often draws on psychological evidence to obtain more accurate and unbiased evidence, and some reality-based information about the family.
PSYCHOLOGICAL ASSESSMENTS
Psychological assessments can be agreed to by the parties or ordered by the court in cases where there is highly conflicting evidence as to how the child’s needs can be met, or where the judge is convinced by the evidence presented in court that mental health issues affect parenting. During an assessment, all family members are assessed in an intrusive and lengthy multidisciplinary process to determine which of them can better meet the children’s needs from a social and psychological standpoint. The assessor makes recommendations regarding custody and access, which a judge may consider and implement. However, the assessment report and recommendations are only part of the entire body of evidence provided to the court. An assessment report that is unfavourable to one parent can be discredited by that parent’s lawyer through various challenges to the assessor’s experience, credibility, methodology and perceived biases. The high cost of an assessment (ranging from $4,000 to $20,000), which is shared by the parents, is a major deterrent to obtaining good, independent evidence because many families do not have the financial resources to pay the fees involved. Some clinics that are affiliated with courts provide a subsidized assessment service, but these are overwhelmed by a high volume of requests for service, and the waiting lists are very long, which again adds to the status quo inevitability that the early arrangements regarding custody will continue.
Mediation
Family mediation is another form of assistance to the court in determining custody and access issues. The parties are either referred by the court or make self-referrals to work on their parenting issues with the assistance of a trained neutral mediator who is knowledgeable in child development and parenting issues. In many provinces where specialized family courts exist, court-connected family mediation programs are subsidized by the province. Mediation with qualified, experienced and screened mediators is available on a sliding scale, user-fee basis. Many private sector mediators also provide this service. The mediation process has a therapeutic component because it is often a means to re-establish effective communication between the parties after a traumatic separation. Parents are invited to take responsibility for their child’s living arrangements rather than leaving these important decisions to a judge to decide at a court hearing where evidence may be conflicting, and time constraints for the hearing compound systemic delays in progressing to the hearing. However, if there has been abuse within the relationship, mediation is not usually appropriate.
Negotiation
In the majority of cases, the issues that arise from a separation are addressed by negotiation, either directly between the parents or by lawyer-to-lawyer negotiation. Parties who can set aside their own anger and distress to focus on the needs of their children often negotiate very appropriate agreements for the living arrangements for their children, which recognize the need to periodically revisit these arrangements as the age and stage of development of each child changes. A parent may be more likely to tolerate an unacceptably low level of access in the short term, if he or she understands that it meets the child’s current needs and knows that the schedule will be renegotiated at a fixed future date. When parents are given information about children’s developmental needs and get into the habit of negotiating with each other directly about parenting issues, the benefits of having two involved adults available to care for the children becomes apparent. This may minimize the ‘absentee parent’ situation where one parent feels so powerless that he or she opts to vacate the parenting role.
In Canadian society today, there is a 50/50 chance that children will grow up in a family that does not remain intact. Stigma is no longer attached to being from a ‘broken home’, but the pain and trauma caused to children during a fight between the parents can adversely affect a child’s intellectual, academic, social and psychological development. It is not the family break-up itself that causes the most damage. Rather, it is a prolonged fight (two, three or four years) that creates long term difficulties for children when parents lose sight of their responsibilities towards their children, and fail to protect them from the adult anger and hostility that arises from high conflict marital separations.