Friend of the Court Program

 

Issues of Custody/Parenting Arrangements

In the matter of custody/parenting time, a number of factors will be taken into consideration during the committee's investigation and final report to the court.  In more recent times the term "custody" (which infers that children are merely possessions)  has been quickly losing ground to the term "parenting time", which is less adversarial and a more friendly term.  In the Canadian Parliament's Joint Senate/House of Commons report called "For the sake of the Children" released in Dec. of 1998, it was recommended that the word custody be removed from the language of the family court and replaced with the term "shared parenting"

To be in line with the more recent developments of the language of divorce which uses "parenting time" but also to recognize the term "custody" which is still in use, we have included the use of both terms in our information. It is quickly becoming recognized throughout the community that children are not possessions of their parents, but that parents have certain responsibilities and obligations to the children they are caring for.  We expect that in the not too distant future, that the term "custody" will become a term of the past as the court moves to embrace terms that are more acceptable by the public.

When custody/parenting time is contested, matters regarding the parenting arrangement is brought before the court through a petition.  In all custody/parenting disputes brought before the committee, recommendations of custody/parenting will be made on the basis of the "best interests" of the child which are clearly defined and taken into consideration by the committee in its decision.  The Friend of the Court Program may prepare a report to assist the judge in his/her determination. The report is prepared following an investigation of all parties and a review of the findings by an independent community advisory body consisting of citizens of good standing from the community.

WHO CAN GET CUSTODY/PARENTING TIME? 

When parents create a child they each carry with them the responsibility for that child's care and development until the child reaches adulthood and breaks free into a life of self determination.  That responsibility is not diminished by separation or divorce for either parent. The mother and father equally and individually continue to guide and nurture their children until maturity. No parent should be allowed to or forced to take over that responsibility on their own and all children should have the rights to benefit from the meaningful involvement of both of their parents in their lives.

Under the Friend of the Court program, any party who makes application for custody/parenting time will be given equal consideration by the review committee based on published guidelines which have been deemed to be relevant to the best interests of the child by citizens in the community.  Custody/parenting  may be given to a parent, relative or any agency, which, in the determination of the committee, can best contribute to serving the best short term and long term interests of the child (children). It is recognized that one of the factors deemed to be in the child's best interests is for the child to have a meaningful relationship with both natural parents, therefore preference of custody/parenting will be given to the natural parents of the child providing the other factors in determining custody/parenting can be best satisfied by the parents.  Government or private agencies such as Children's Aid will only be considered as candidates when there are no suitable parents, individuals or families who are willing or able to provide for the child(ren).  

As the community recognizes that any kind of sole custody/parenting arrangement, if granted to only one parent without equal opportunity to the other parent, will create a power imbalance within the family which in turn could potentially allow the abuse of custodial power, a shared or equal custody/parenting arrangement is recognized as the most desirable form of custody/parenting.  Shared custody/parenting has the ability of maintaining balance of power, and to provide the most protection for children, especially where abuse is being alleged but not supported by evidence.

THE TYPES OF CUSTODY & PARENTING ARRANGEMENTS

Basically, there are three types of custodial or parenting arrangements - SHARED custody/parenting, EQUAL custody/parenting and SOLE custody/parenting,.

All three forms of custody and parenting time, however, can involve a middle step referred to as  or INTERIM shared custody/parenting, INTERIM equal custody/parenting or INTERIM sole custody/parenting .  Some form of interim custody/parenting is recommended in most cases where it is felt that i) false allegations have been made, ii) where there is insufficient evidence to make a well informed decision, or iii) where felt that incidents between parents leading up to the time of separation and divorce may not be a true indicator of the parties ability to parent the child..

During the time that an interim custody/parenting arrangement is in place, the abilities of each of the parties will be monitored over a period of time which will allow the each of the parties a fair and equitable opportunity to demonstrate their parenting abilities without any interference from the other parties.  Interim custody/parenting may be recommended for periods up to one year, which is a reasonable time frame required for the hostility between parents to subside and for them to develop the skills to parent their children in their new family environments.

SHARED CUSTODY/PARENTING

Shared custody/parenting will, in most cases, be the form of custody that most parents will find workable, especially where one parent still may need to parent the child for a greater period of time than the other.    Shared Parenting is very flexible to fit the needs of most parents.  It can be almost anything the parents or the parties involved define it to be providing also that it can be shown that the wishes of the parties meet the tests of the "best interest of the child".  Shared custody/parenting can involve two parents (the most common), one parent and another family member (preferably from the other parent's family), a parent and an outside agency, etc. Shared custody/parenting can take the form of shared parenting where each party shares the child with the other party on a basis of up to 49% of the child's time under a parent.  Even a parenting arrangement where parties may divide parenting time on a 25/75, can be considered as Shared Custody/Parenting.

Shared custody/parenting means shared decision making (particularly on major issues involving the child) as well as custody/parenting time by both parents. Shared custody/parenting always means shared responsibility but not necessarily equal time with the children.. All candidates wishing to have the privilege of shared custodial/parenting status must be able to demonstrate their ability (by their actions) to work within a cooperative framework with the other party and to provide consistency in discipline and in all aspects of child rearing.  Those who consistently demonstrate an unwillingness or inability to work within the framework of shared custody/parenting will not be entitled to this privilege.

Shared custody/parenting shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of EACH parent. Where there is a disproportionate difference in income between two parents, and where the parent with the greater resources can afford, the program may recommend modified child support payments to account for the differences.  It is recognized that it is desirable to maintain a situation where both parents are contributing to the children in the same manner as if they were in an intact family living in the same home.  An order for shared or equal custody does not necessarily mean that there will be no child support paid between parents.  (For examples refer to child support payments)

Any party objecting to a shared custody/parenting arrangement with another party must provide reasons why, based on CLEAR and CONVINCING evidence (not allegations of one of the parties), that shared custody/parenting or equal custody/parenting  is not in the best interest of the child.

EQUAL CUSTODY/ PARENTING

Equal custody/parenting is recognized as being the most fair and equitable of the three types of parenting arrangements where it is feasible and practical.  It ensures the child's right to access to both parents at all times, offers the best protection for the child when physical and emotional abuse is suspected but not proven, and because equal parenting lays the foundation of fairness and equality, that the likelihood of conflict between parents will be kept to a minimum at any time in the future.  In an equal custody/parenting arrangement, both parents know that they are each in a position that only good parenting will allow them to retain.  With equal custody/parenting, both parents have a vested interest in working cooperatively with the other party and maintaining their status quo. The possibility of losing the privilege of equal custodial/parental status if one fails to work cooperatively in the best interest of the child, ultimately, will positively motivate both parents to be the best parent they can be to their child.

Equal custody/parenting generally works best when parents reside within a close proximity to one another which will allow each of them to facilitate transporting the child back and forth to school and other activities and to be able to provide the love and attention the children need.  In most cases, parents wishing to enter into a equal custody/parenting arrangement should be willing to locate within the same or adjacent school district.  Excessive distances and the time associated with transporting the children back and forth to school during the school week, in general, can create difficulties which may not make an equal custody/parenting arrangement practical.  There may be exceptions to this which will be looked at by members of the committee who will make recommendations to the court.  Such exceptions may include:

(a) a minor child who may have a car for transportation which will allow convenient transportation between parent's homes and to place of schooling.

(b) the presence of other factors which would demonstrate that the child(ren) are benefiting reasonably well at both homes in the area of social and educational development.  For example, the child may have a wide assortment of friends at both homes and activities at each parent's home.  Often a child may have two completely separate sets of friends who may even go to different schools.

Under an equal custody/parenting arrangement:

(a) The child should be able to go back and forth from school in a reasonable amount of time without affecting the child's attendance or performance when compared to the situation where the child would always be residing in the immediate school district.

(b) The child's school activities and relationships with their friends in their community should not be unduly impeded by difficulties in transportation or communication created by the distance between homes.

(c) Weather and other factors which may cause problems when a parent lives further from the school which the child attends, should not be a significant factor that unduly affects the child's attendance or performance at school or at various activities.

SOLE CUSTODY/PARENTING

Sole custody/parenting is when only one party makes all of the day to day decisions affecting a child's life.  Sole custody/parenting, in most cases, is not recognized as being the most suitable parental arrangement for a child, especially when it can be shown that both parents have the capabilities to provide for the needs of the child.  Sole custody/parenting may be recommended in any situation where it can be clearly shown that any form of shared custody/parenting arrangement is not workable or not possible.

Where a sole custody/parenting arrangement exists, and where disputes arise, the sole custodial/parenting party will decide where the child will live, which school to enroll the child in, what religious instruction the child will have, what disciplinary measures will be used, how long the hair will be, how the child will dress, and with whom the child will associate. All of these decisions can be made without notification or consultation with any other party although these may be limited in their scope by specific language in the orders of the court.

In all cases, the Friend of the Court program stresses that when a party is granted sole custodial/parenting privileges, that they must at all time demonstrate cooperation and consideration, or their status as sole custodian/parent may be revoked by further court action should it be found that a party does not continue to fulfill their ongoing obligation of working in the best interests of the child.

Sole custody/parenting may be recommended to one parent or to a third party  where:

a)  There is CLEAR and CONVINCING evidence that any parent or party to be denied any form of custodial/parenting status has physically or emotionally abused the child, AND, is likely to do so in the future, OR where the past abuse by the party has affected the child to the point where irreparable damage has been done so that the child may not wish to be with the party for that reason.  NOTE: The potential of brainwashing of the child by an alienating parent as well as manipulation of parents by teenage children must be carefully taken into consideration by professionals trained in such conditions where use of these strategies this may be suspected.

b) There is CLEAR AND CONVINCING evidence that the party seeking sole custody/parenting has demonstrated a willingness in the past, and is likely in the future, to work cooperatively with other parties having an interest in the child, AND that the other parties to be denied custody/parenting status have not in the past and are not likely in the future to be capable or willing to work cooperatively with the other parties having an interest in the child.

c) Where there is CLEAR AND CONVINCING evidence that one or both of the parents are mentally unfit, or have abandoned the child by leaving the jurisdiction where the child resides or for any other reason any party to be denied custodial rights is unable to satisfy the criteria of the committee used in determining the best interest of the child.

NOTE: Where evidence make it difficult to clearly demonstrate that it would be in the best interests of the child to be placed in a sole custodial/parenting arrangement, then preference will be given to a shared custodial/parenting arrangement, even if on an interim basis, so that all parties can be given equal opportunity to demonstrate their parenting skills and abilities.  During the time that the interim custodial privileges have been granted to parties, then it would be most appropriate for the parties to demonstrate their parenting abilities to the committee during these period.  At the end of the interim period final recommendations can be made to the Court by the Friend of the Court Program.

INCLUSIONS TO PARENTING AGREEMENTS

In any agreement or court Order, there may be the need for any number of clauses to be included.  Some agreements or orders may be quite complex and others relatively simple.  Generally, more detailed agreements may take more time to prepare and make take longer to review, but generally allow for fewer misunderstandings in the future.  Detailed agreements are recommended for situations where it is felt that the potential for conflict between parents may exist during their cooling down period.  Some of the most basic clauses which should be part of any agreement include:

(a) Times that the child shall reside with each parent during the various time of the week, month or year as well as on holidays and special events. 

(b) Recognition that during the time a child resides with a parent, that the parent having care and control at the time shall decide all routine matters concerning the child.

(c) If there is a dispute regarding residency of the child, the basis for determining residency shall be clearly stated in writing. 

(d) A mechanism to deal with any disputes should they arise. The Friend of the Court program can be used although any third party mediation service may also be used.

In all cases the Friend of the Court programs stresses that when a party is granted shared custodial/parental privileges, that they must at all times demonstrate cooperation and consideration.  Failing this, their status as a shared or equal custodian/parental party may be revoked by the Court should it be found that a party does not continue to fulfill their ongoing obligation of working in the best interests of the child(ren).