Custody disputes are often the most contentious aspect of divorce litigation. They can be highly emotional because they involve the most important part of parents’ lives. There is a reason that when we refer to custody disputes they are often called “custody battles”, whereas property or support disputes are rarely given such a name. For many parties, it’s an all-out war.
There can be all kinds of reasons why a separated parent may conclude that it would be in their child’s best interests to be in their sole or primary custody. Issues like addiction, neglect, and abuse are obvious (and often the subject of reports to the Ministry of Child and Family Development), but other problems like an inability to cooperate with the other parent, refusing to take the child to any of their activities, exposing the child to inappropriate comments about the other parent, different disciplinary styles, or failing to ensure the child is completing school work, are some of many reasons that may cause separated parents to seek sole or primary custody of the children.
Given that the court will generally order as much contact with each parent as is consistent with the best interests of the child, here are some tips for parents who are in the midst of a custody dispute:
- Try to cooperate wherever reasonable. Parents who refuse to cooperatively co-parent may find themselves losing primary custody of their children.
- Be willing to foster your child’s relationship with the other parent, even if you really don’t like your ex right now. The Maximum Contact Principle at s.16(10) of the Divorce Act specifically says that the court will take your willingness to facilitate contact with the other parent into account when making custody orders.
- Keep in touch with teachers and existing daycare providers. Make sure you have a good relationship with them. You may want them to be a witness later on.
- If necessary, make reasonable arrangements for childcare during your time, and give your ex-notice of who is looking after the children, because that’s the reasonable thing to do.
- Ensure that your living arrangements accommodate the children. If you are in a studio apartment, it’s difficult to successfully argue that your three children should be staying overnight multiple times per week.
- Make yourself available to take the children to any doctor, dentist, or other appointments. Insist on being informed and involved in decision-making regarding their healthcare.
- Look for ways to maximize your availability for parenting time. For example, if you are working full-time, is there any way to arrange flex time so that you can leave early to pick up the children from school?
- Consider commissioning an expert report if there is a major issue regarding your ex’s ability to parent.
- Keep a detailed log of pick up and drop off times, and any issues that arise that you may want to raise in a court application later. Your memory will fade and the contemporaneous notes you take will help you or your lawyer advance your case in court.
- Consider counselling for the children if you feel that they are not doing well under your ex’s care. Counsellors for children can provide helpful insights into the children’s needs and feelings, which can sometimes be used as evidence of their best interests in a custody application.
- Make sure your communications with your ex-are respectful, even if they don’t show you the same courtesy. Rude or aggressive communications will work against you in court.
- Do not speak to your child about litigation or lawyers, and do not badmouth your ex to your child. Courts will interpret this as failing to put the child’s interests before your own.
These are just some things to keep in mind if you find yourself in a custody dispute. Given the complexity of the legal system and the importance of the issue, most people would be wise to retain counsel or at least seek independent legal advice with respect to their case. After all, if you are going to battle, you want to bring in the big guns.
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Virginia Richards is a family lawyer practicing at Henderson Heinrichs LLP in Vancouver, British Columbia. She has been advising and representing clients at all levels of courts in British Columbia since 2010.
Nothing in this post constitutes legal advice and is for general informational purposes only and may not reflect the law in your jurisdiction. No information contained in this post should be construed as legal advice from Pursuit or the individual author, nor it is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer in their own jurisdiction.
