John Schuman, Toronto Family Law lawyer at Devry Smith Frank LLP, was asked this question just recently: “My ex is trying to get custody of my six year old and I have been the sole support to my child her whole life. Her father has been in and out of the jail and is a drug addict. He claims that he changed but I am not buying it. He is abusive and I have police reports to prove it. I also have papers from children’s aid society saying that he is unfit parent. What should I do?”
Based on what you said, it sounds like your ex has an uphill battle to get custody of your child. Judges have specific factors that they have to consider before making an order for custody of a child. Those factors help the judge decide what order is in the “child’s best interest.” You may also want to listen to this podcast that goes over not only how judges decide custody cases, but also what “custody” actually means.
However, as the decision comes down to what is best for the child, it is difficult for people who are abusive, or have substance abuse problems, or have who have concerned a children’s aid society to get custody of a child.
Access is a different matter. This is for two reasons. First, access can take many forms, occur in different places, can be supervised, or occur in a therapeutic setting, or for limited times. All of these considerations may make it possible for access to be “safe” for the child. Judges won’t order access if doing so may put the child at risk of harm. However, there are only very limited circumstances where the risk of harm cannot be addressed by supervised access.
Second, from a psychological and developmental perspective, there is a great benefit to children in knowing who their parents are. Children form a sense of identity by knowing who their parents are – even if they form a sense of identity by deciding that they are not like their parents because they don’t like who their parents are. Children who don’t know their parents do less well psychological because a piece of their identity is missing. So, for the child’s sake, courts do like to try order some access.
What children want, or what they think they want, is not determinative of anything in custody and access cases in family court.
There can be difficulty where a parent wanders in and out of the child’s life on the parent’s whim. That can be a bad situation because the child does not get to really know the parent, but suffers a loss, or perhaps feels rejected every time the parent disappears. In those cases access may not be a good idea.
A child psychologist or social worker may be able to help you and your ex sort out what is best for your child. However, that option is only possible if both parties agree on the professional and agree to participate in good faith to work for the benefit of the children. If the parents can do that, they can come up with much better solutions than a court may order because they can focus on the specifics of the child’s life and needs that a judge may not hear about if the parents do not present their cases carefully and effectively.
Child custody cases can be very difficult and there can be a lot at stake for the children. For difficult parenting cases, it is extremely important to speak to a good family lawyer who knows how the law could apply to a specific situation and can help you explore all the options for dealing with the problems. You may also want to pick up a copy of this $20, easy-to-understand book on Ontario Family Law.
It explains custody-access law, how judges make custody and access decisions, the court process and other options for working out parenting matters – there are a lot of better options for working out parenting conflicts that result in tailor made solutions that benefit the children more than a court imposed custody order, but court may be necessary in some cases.