Murder trials are one thing; custody trials are tougher.
Each custody trial has its own dynamic. In most high-conflict custody cases, the family dynamic that prevailed in the home before separation finds its way into the courtroom.
How the parties argued during the relationship finds its way into the courtroom.
How the parties implicitly negotiated their marital and relationship roles finds its way into the courtroom.
How the parties raised and interacted with their child finds its way into the courtroom.
Perhaps not surprising, courts are presented with two different movies, so to speak. What is of greatest import, however, is the relationship dynamic between each parent and the child. The focus always must be what is best for the child. The test is not what is best for either parent. Further, political correctness has no part in what is best for children.
The Best Interests of The Child
The parent-child development literature is clear that children do best when the child can have a good relationship with both parents. Likewise, children do best when they can show love and affection to each parent without fear of rebuke or censure by the other parent.
Children do better when the parents can negotiate good quality time with each child and parent.
Children do better when each parent can have a say in the child’s education, activities and life choices.
Children do better when each parent shows respect to the other parent despite the separation.
Where parents are able to achieve the type of positive relationship, custody trials are not required. Parents displaying the ability to see the other as a valid and positive influence on the children are able to arrive at good and appropriate parenting agreements. Some of those agreements will include future dispute resolution methods. Both the Divorce Act and the Family Law Act (FLA) embrace the principle that each parent should have as much contact as possible, as long as it is in the child’s best interest.
Not every custody file can end with a positive agreement. Custody trials — by contrast — are raw, explosive battles.
However, if parties on their own or through their lawyers cannot resolve the issues, there must be some mechanism available to determine the issues. As a result of the above, in recent years across North America, governing bodies have emphasized alternate dispute mechanisms. That philosophy has been incorporated into British Columbia’s Family Law Act.
The noted Act embraces both mediation, judicial settlement conferences, and even Arbitration. Further, the Supreme Court Family Rules require that parties attend a Judicial Case Conference (JCC) before the parties can attend court and exchange potentially damaging affidavits. Additionally, the FLA has embraced the use of other professionals such as counselors and parent coordinators to assist in the resolution of difficult files. The FLA also continues the use of Custody and Access Reports, now referred to as "section 211 reports." The reports are designed to review primarily the relationship between each parent and child, and each parent’s ability to positively impact the child. The author ultimately makes recommendations as to a particular parenting regime. However, the trial judge has the ultimate decision-making authority, not the section 211 author. For obvious reasons, such a report can be used to assist in settlement of the file, and if that fails, at trial.
What is interesting about the FLA is that, in addition to recognizing the need for alternate dispute resolution mechanisms, it also recognized that alternate dispute methods such as mediation could not be invoked in all cases, such as those where unequal bargaining power existed between the spouses. The obvious situation is where there was a history of Family Violence. The Family Law Act now requires each lawyer seeing a prospective client to screen for family violence. Mediators have the same obligation.
The FLA allows parties to seek and obtain Protection Orders. A history of family violence will need to be known and appreciated before entering into any negotiation or mediation. It will also need to be known and appreciated if one proceeds with trial. Further, Family Violence has been defined to include more than physical violence. It includes behavior ranging from threats to physical or sexual assault. It may also include harmful financial, emotional, and verbal statements. The publication Family Law in B.C. online includes an excellent summary of what may be included in the definition and it is clear it goes well beyond physical threats and physical harm. It can include financial threats and actions, psychological intimidation and controlling behaviour.
Although some academics and practitioners suggest that courts are not the best institution to resolve such custody disputes, on the other hand, no alternative has been suggested. Perhaps the use of trial courts for custody disputes falls into Churchill’s comments about democracy and political systems, to wit: he said democracy is the worst system of government in the world except for all the others that have been tried from time to time (Churchill by Himself, page 547).
Parents, over time, carve out their parenting relationship with each other and with the children. There are as many different parent-parent and parent-child dynamics as there are marriages or relationships. How each parent sees their role and relationship with each other and the children at the end of the relationship will determine how the custody process will move forward. We list below some parent-child dispute types:
- Both Parents Want to Maximize Time & Role With Children
- A Parent Wants No Involvement of the Other Parent
- A Parent Has A Bona Fide Need to Move
- A Parent Has A Poor Relationship with The Child or Children
1. Both Parents Want to Maximize Time & Role With Children
Sometimes the parent-child conflict simply represents two capable parents trying to maximize their time and role with the children, where each has a good relationship with the children. Sometimes the different parenting perspectives are informed by different levels of parental discipline, different views of educational requirements for the children, different views of the children’s futures, and different perceptions of the other parent's ability to positively impact the children. These types of cases can and should be resolved. Where they are not resolved, they are not normally high-conflict cases, but depending on the health of each parent’s relationship with the children, they could become high-conflict custody cases. One of the critical factors a court looks at in such cases (indeed all custody cases) is the ability of each parent to facilitate parenting time with the other parent.
2. A Parent Wants No Involvement of the Other Parent
Sometimes a parent simply wants to raise his or her child without the involvement at all of the other parent. This dynamic is sometimes associated with a background where the mother and father did not live together at the time of the child's birth or had a short relationship. Where the other parent objects to the attempt to shut them out, a custody trial will likely result. In many cases, the parent that limits contact improperly maintains that the other parent does not have good parenting skills. Sometimes this dynamic can be found in longer relationships where one parent was not as involved in the care and lives of the children, but after separation, may want to increase the time that he or she spends with the children.
3. A Parent Has A Bona Fide Need to Move
Sometimes after separation one parent may have a bona fide need to move away from the area that the family lived in during marriage. Where the two parents cannot agree that the parent wanting to move can do so, then courts, in order to deal with the mobility decision, need to determine which parent is the preferred parent to raise the children. Importantly, a parent contemplating such a move that will impact the other’s parenting time, by reason of the move, has an obligation to provide notice of the intended move. A consent to the move could result. Where there is no consent, the Family Law Act has set out criteria that a court should look at before making a decision. The parent that wishes to move with the children should not do so before the court has granted leave or permission to do so. These are referred to as "Mobility cases." The applicable FLA sections are found at s.65 to 71.
4. A Parent Has A Poor Relationship with The Child or Children
Where one of the parents has a poor relationship with a child or the children, there are two potentially mutually exclusive explanations. The parent with the poor relationship may claim that his or her poor relationship is due to the other parent negatively impacting that relationship. If that is the case, it may be referred to as "parental alienation." The converse to that is the parent having the poor relationship may be the cause of that relationship. If that is the case, it is not parental alienation but "justified rejection."
As can be seen, there are numerous parent-parent and parent-child dynamics that go into custody disputes. Reviewing the background with your lawyer is extremely important. The work done soon after separation will impact the preparation for trial. The raes is extremely complex and needs to be treated with care, time and preparation.
The Thomas & Associates trial and appeal lawyers have extensive experience in these areas. We are prepared to meet with you in the first instance or if you want and need a second opinion, please call us to discuss.
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