Child custody and Visitation rights

Child custody and Visitation rights: Things to know

One of the most sensitive issues in family law is child custody and access rights. They almost always result in extremely emotional debates between parents. Each cries out for justice, which of course really means his rights versus her rights.

Parents involved in a dispute regarding their children must understand that the judge’s first concern is with the children, not the parents, even if the judge’s sympathy may be with one or the other parent. His decision is always based solely on the interest of the child.

The judge will consider any number of aspects to arrive at his decision in the interests of the child.

Child custody factors can include:

• stability
• availability of each parent
• parental ability
• the degree of conflict between the parents
• the age of the child and his or her wishes

Stability implies the physical and emotional distance between the parents. The closer the parents reside to each other and the better they get along, the better chance to consider joint custody. Same school, same neighbourhood and peaceful co-existence is a good recipe for shared custody.

For example, a parent that works nights may be a wonderful parent, but not a good candidate for joint custody if the other parent is suitable. Or, similarly, if one parent lives far from the other parent, obtaining a joint custody or even a generous access decision, is difficult.

Parental capacity is always presumed unless proven otherwise, so the parent that challenges the capacity of the other parent must establish, for example, a problem with alcohol or drugs, or anger, or violence, or immaturity, or any other improper behaviour which may likely affect the child.

The level of conflict between the parents is often proportionate to the stability of the child. If the parents are unable to deal with each other in a civil manner, it will be unlikely that a judge will grant generous access.

In one of my child custody cases the Judge said that he was required to choose the parent who fulfilled the criteria for custody, although the parent may not necessarily be the “better” parent. It becomes a King Solomon choice. For example if one parent is certainly capable, but works nights, it may be difficult to take care of the children and therefore the parent would not be granted sole or joint custody.

It is very important that your family lawyer clearly explains this principle of best interest of the child when considering a demand for sole or joint custody and how it will affect access in the future.

Cabinet Gelber Liverman