“Best Interests Of Children”, Not “Best Interests Of Parents,” Is The Test

There has been a recent Private Member’s Bill that seeks to change the law with respect to custody to create a presumption that parents share equal time and parenting of their children.  While this sounds like a good idea in theory, it misses a fundamental principle of our current law which is that it takes the focus away from what is truly most important, the best interests of the particularly children involved.  For this reason, this Bill is strongly opposed by many family law practitioners.

Of course we all agree that, to the extent possible, both parents should be actively and equally involved in their children’s lives.  However, any regime that shifts the focus away from the children and places it instead upon the parents’ rights is misguided.

The current law requires the “best interests of the children” to be the paramount consideration in determining the custodial arrangement.  This requires a consideration of the condition, means, needs and other circumstances of the particular children involved.  What works for one child, or one family, may not work for others.  In a family where the two parents live close to one another, have similar parenting styles and are able to maintain a decent level of communication, shared custody may be the ideal situation.  In another family, however, the parents may live too far apart such that it would be impractical and disruptive for the parent to be able to get the children to their school and activities each day.  One parent may live in an entirely different town.  Or they may live nearby but have such different parenting styles that would leave the children with too much instability and inconsistency to have two “primary” residences.  In some cases, one or both parents may foster such hostilities towards the other that they cannot communicate with one another or even make rational decisions in the best interests of their children.  These are merely a few examples of situations where shared custody may not work.  The proposed Bill seeks to have the presumption of equality apply regardless of the ages, abilities, circumstances, needs or attitudes of the parents and children involved.

Under the current law, the courts and parties already consider shared custody as an option in appropriate cases.  In fact, the courts are required to consider the principle that “a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.”  If this Bill were to become law, the courts would be mandated to order shared custody unless the parties were able to convince the court that the children would be “substantially” better off with one parent.  The result would be to encourage parents to engage in contentious litigation where, rather than focusing on the children’s best interests, the parties would be placed into a position where they need to demonstrate why the other parent is inadequate such that the presumption should not be followed.

Litigation never fosters civility and communication between parties, but is even more disastrous in family law cases where the parties cannot simply go their separate ways once the litigation is concluded.  When children are involved, they need to be able to co-parent their children for the years ahead.  It is critical to their children’s well-being to provide the children with a custodial arrangement in which they can thrive and in which they can benefit from meaningful relationships with each of their parents as much as possible.  This does not, however, always mean that they should reside equally with each parent.  The focus is, and needs to remain, on the best interest of those children.

If you would like to discuss this or any other family law matter further, please do not hesitate to contact Ashleigh Baylis at baylis@pushormitchell.com.