Parents going through a divorce often find themselves making emotional decisions that aren’t necessarily in the best interests of the children. Earlier this summer, the Ontario Court of Justice issued a decision an an interim custody application. The Judge didn’t believe either parent. The written decision is a good example of what not to do in this situation. Here are 5 pitfalls to avoid when seeking sole custody of your child.
#1 Pitfall to Avoid When Seeking Sole Custody of Your Child – Don’t Make Allegations Unless You Can Prove It
Allegations that can’t be proven paint you in a bad light. This can mean allegations of drug use, violence or other similar things. In this case the father made allegations that the mother was a crack addict. The mother responded by saying that she used previously but was now recovering. The mother alleged the father used marihuana while he was looking after the children. The father said that he used marihuana for medicinal purposes.
Not surprisingly, the Judge found that there was insufficient evidence to make a determination on either allegation. Further, there was no evidence that drug use was impacting the ability of either parent to properly care for the children. The only way that a Judge will put any weight on your allegation is if you can actually prove it.
Making allegations of drug abuse is only done to degrade the other parent. There is no value to the proceedings of making allegations that can’t be proven. Don’t get tied up in a battle of making the other parent look bad because it will have the opposite effect.
Don’t make allegations of drug use unless you can prove it. Further, there is only value to this allegation if drug use has negatively impacted the ability of that person to properly parent. If there is a legitimate concern of the impact of drug use, make a complaint to the children’s aid society. If your complaint has been investigated and the experts has determined there is no danger to the children, don’t continue with this complaint.
The same goes for allegations of domestic violence. This is a serious allegation that needs to be reported to police. Understand that the police do not have discretion with domestic violence and are required to lay charges if evidence exist. If the police have investigated your complaint and no charges are laid, give serious consideration to the value of continuing with these allegations.
#2 Don’t Break into Your Ex-Spouse’s Home to Gather Evidence
The father in this case was exercising access with the children at the mother’s home. While the father and children were outside, the mother left and locked the house behind her. The father said that he needed to use the bathroom, so he entered the house by reaching through a broken window to unlock the door.
While he said he entered to use the bathroom, while inside he was able to take a photograph of what he said was a crack pipe. The Judge found that he was oblivious to the error in his judgment and didn’t understand why the mother was angry.
Effectively what this looked like was the father attempting to gather “evidence” to undermine the mother. In the end, it made the father look bad.
#3 Don’t Disregard Court Orders
Court Orders are just that, an Order. Ignoring the Court Order only serves to make you look bad. In this case, the Judge granted the father two days of access with their child as well as the mother’s child from a previous relationship.
The mother was angry with the inclusion of her daughter in the Order. Rather than comply with the Order, she went to a different Judge to try and have the Order changed. When that was not successful, the mother said that her daughter was sick and didn’t grant access to the father. The Judge was quite direct in his response: “I find that she lied to my face during the hearing of the motions by telling me that (her daughter) could not attend the access visits because she was sick”.
Even if you don’t agree with a Court Order, you need to comply or have it amended. Refusing to comply with the Order will never work out in your favour.
#4 Don’t Withhold Access From the Other Parent
Sadly, this is all too common. In this case, the mother was angry after the father broke into her home. She had every right to be angry at this. However, her response was not helpful. She could have used this information to her advantage in the proceedings. Doing so would have been helpful.
Rather than take that approach, she refused to allow the father access to the children. I have no doubt that the mother believed she was doing the right thing. However, the effect of her actions didn’t punish the father. Her actions punished the children, by keeping them from seeing their father.
Parents going through separation are often emotionally involved. They become so driven to destroy the other parent, that the children often become pawns in the ongoing war. If your ex-spouse has done something to anger you, remain focused on the ex-spouse. Involving the children in the dispute only harms the children.
#5 Don’t Seek Sole Custody Without Having a Plan
The father in this case applied for sole custody. At the time of his application, he lived in a bachelor apartment. Effectively, the father was asking the Judge to grant him sole custody for two children, with no plan as to where they would sleep.
The Court is not concerned with the actions and behaviour of either parent. The sole concern for the Court is what is in the best interest of the child. Part of this analysis needs to include what the plan is. Where will the children sleep? Where will the children eat? How will the children get to school or activities? Who else lives in the house?
Sadly, the father first filed a motion for sole custody of his one child. When he received the expected emotional response from the mother, he amended his application to include his step-daughter. The Judge inquired about the amended application and the father said it was an inadvertent oversight to have left out the step-daughter.
The Judge was clear on this point. No parent would inadvertently forget a child in a custody application. It looked like the father was trying to punish the mother.
How to Get Sole Custody in Ontario
Applications for sole custody need to be limited to circumstances where there is no other option. The pitfalls to avoid when seeking sole custody of your child may seem obvious. If you are seeking sole custody, here are some tips:
- focus on the needs of the children;
- focus on your ability to provide the children a caring environment;
- attempt to organize maximum contact between each parent and the child;
- don’t focus on degrading the other parent.
A decision to seek sole custody should not be taken lightly. Sole custody means that the other parent should not be involved in major decision making. To convince a Court that this is in the best interests of the child, your argument needs to focus on the child. Having an argument centered on the negative aspects of the other parent doesn’t help.
Contact Hearty Law with any questions on custody or access. Hearty Law provides virtual consultations on any family law issue. This includes custody, access, divorce, separation, child support, spousal support, distribution of property and other family law needs. Complete the contact form here, or email email@example.com or firstname.lastname@example.org.
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