Posted by Graeme Maitland — filed in Family Law
The case in the news this week from Medicine Hat, about a 4-year-old child ordered by the Court not to wear girls’ clothes in public, is a good opportunity to talk about the role the Court plays in custody disputes. Lawyers and judges have an important role to play in helping people resolve disputes in family law, but do you really want a third person you have never met make a decision about how to raise your child? Almost all parents have joint custody by default and when there is a dispute and the parents cannot decide then a judge will decide your dispute for you if you ask, but it is not the best way to approach a dispute initially.
This case is a perfect example: one judge says one thing, that he is right and she is wrong. The next judge says something else and now she is right and he is wrong. The parties go to court like a revolving door and people get more entrenched and angry with each other and spend a fortune and countless hours trying to figure out the process.
Where is the child in all of this? The only test the court can consider is what is in the “best interests of the child”. Sometimes, the judge disagrees with both parents and does something else entirely. Parents often forget the third option: what the judge thinks is in the best interest of your child.
This does not mean that lawyers and judges cannot help people with their disputes. It is inevitable that some parents will have a dispute and each party needs to understand the law. So many people think they know what the law is but only read what they want to see. The internet is filled with misinformation and half-truths.
One of the easiest ways to way to avoid a court battle is to actually seek early legal advice from a family law lawyer. They will help you understand your rights and obligation in a divorce or separation early in the process. Early and accurate advice can avoid disputes and allow the parties to have informed discussions about how to move forward with their relationship breakdown.
Further, a lawyer looking out for your interests and your child’s interests should also discuss mediation. In fact, it is part of our Conduct of Conduct. Mediation only works when, and most mediators will not commence the process unless, the parties seek legal advice first from a lawyer. Your friend who just got divorced whose circumstances are different than yours doesn’t count. Mediation works, especially if you have a lawyer as a mediator and each party brings a lawyer to the mediation. Studies show quite conclusively that the process works when done right. There are a variety of ways to settle a case through mediation and collaborative efforts. The training of lawyers is now directed very strongly at resolution in family law and it works in most cases. Lawyers can help you decide what type of process is best for you and your family.
Another way courts and lawyers can help is to navigate the various services available through the courts. Judges have powers to direct families to resources in specific cases. According to Family Practice Note 7, an Intervention can be used in circumstances to assist children and parents in a state of high conflict. Family Practice Note 8 allows for the Court to order a Parenting Assessment by a child psychologist. These provide explicit recommendations to all parties in a dispute when there is an impasse.
The case in Medicine Hat is a perfect example of where a child psychologist and an assessment would be helpful to take a child centred approach to the parents’ dispute. I doubt the parents, lawyers or judges truly understand what is going on what that child. Getting into a court fight and making quick decisions in morning chambers is probably not going to result in the best child centered decision. It could even do permanent harm to that child. All parties should be engaging a professional in child psychology to find out how to guide the child and the parents through this difficult issue. Just as in law, getting your information on something like this through the internet is probably not going to serve that child’s best interest.
Lawyers in family law can help parties through the assessment process and to find the best possible person to help with the dispute. Lawyers deal with these experts regular and will have a network of people to guide the process.
Sometimes the parties will end up in court in a custody dispute despite all of their best intentions. This should be the last option. If, after mediation and engaging an expert, the parties still cannot agree then there is the court. Sometimes the parents simply cannot agree no matter what. In this case, courts can be engaged to make a decision and not just facilitate a decision.
Nevertheless, if used as a last resort then the parties should be more informed about their rights and obligations and the court may have access to an assessment. By the time a matter reaches court, parents should know that involving a child in their dispute cannot happen. The parents should have also learned how to avoid inadvertently involving the child. An appropriate amount of time should be set aside for the court to make a decision.
Using a lawyer in the courts is a great asset. If it gets to this stage the court generally insists that the rules of court and evidence are properly followed. Also, the lawyers will only be making submission based upon relevant information and not enflaming a situation by raising past problems when they are completely irrelevant to the matter that has to be decided.
If you need assistance in a custody matter, speak to one of the lawyers at Aarbo Fuldauer LLP in Calgary.
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120