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Parenting during separation and divorce. How do courts decide parenting time?

Jonathan Song

Written by: Jonathan Song (View All Posts ) Published: April 7, 2017
Categorized: Custody and Access, Parenting, Parenting Time.

This will be the first of a number of articles briefly covering different aspects of separation and divorce law in Alberta. They are intended to provide a general guideline to help you orient yourself. However, there is no “one-size fits all” approach in family law. The facts of your situation are always going to have an impact, and it is still best to get a lawyer’s advice about your specific situation.

Custody and access (parenting time)

When parents separate after the child is born, the default rule is “joint custody” of the child unless there are circumstances that demonstrate one parent or the other should have sole custody. We’ll cover these in a later post (or if you have immediate questions, please contact us).

What joint custody means

Joint custody does not dictate who gets what time with the child, only that both parents get to take part in important decisions about the child’s life. This rule applies regardless of whether the parties were married or not. The court is operating based on the idea that, even though the two of you are separated, because you have had a child together, you still have to co-parent unless that really turns out to be unworkable or one of the parties simply does not want to be a parent to the child anymore.

What if one parent abandons the child(ren)?

If one of the parents truly wants to abandon his or her parenting duties, then there is not much to be done about it, but chances are, child support obligations (to be discussed in my next blog article) will still exist.

In addition to the financial fallout, there are emotional issues to consider both for yourself and the child. It is wise to get advice from a qualified counselor on these issues.

How courts view parenting time disputes

When faced with any parenting dispute, the court is supposed to only consider the best interests of the child. The current law states that, unless there is specific evidence to the contrary (i.e., a bad parent), it is in the child’s best interest to maximize his or her parenting time with both parents.

That said, the court is not likely to order 50/50 parenting for a 3-year-old if the parents cannot agree on that parenting arrangement themselves. The court will likely take the position that, when the child is that young, a stable home environment is most important and spending equal time every week or so at a different household is not a good idea. Since the mom is usually the primary caregiver for a very young child, most of that child’s time is likely to still be with the mom. However, as the child gets older, the court will be more likely to order 50/50 parenting.

“Best interests of the child” is an evolving concept

As one can see, what is fair or unfair to a parent is technically beside the point. It is all supposed to be decided from the perspective of the child’s best interests. This is also why, as I mentioned in an earlier blog article on separation agreements, an agreement about who gets the child years in the future is probably not enforceable because the court, when asked to enforce it, will reply that it has to consider the child’s best interests at that time and not whatever was negotiated by the parents years earlier.

Tips to help you reach the goal of increased parenting time

If you are the parent who presently does not have 50/50 parenting for a very young child, you want to get to it as soon as possible, and your ex is opposed to that, here are a few tips to follow to maximize your chances of reaching that goal:

Take whatever parenting time you can get now and do not skip

Adjust your work schedule or find a new job if you have to. I will develop this point in more depth in my next blog entry but for now, know that you are often allowed to work less and earn less money than before the separation, and thereby pay less support, if you are using that extra time for parenting. The goal is to demonstrate (with evidence) to the court that you want to be an engaged parent.

Keep a journal of the parenting time that you have had

Describe, at least briefly, what you did with your child during your time together. Relying on memory alone is not a good idea as you might be arguing about that parenting history years later. Send a copy of these entries to your ex so that he or she knows what you are up to. Doing so also shows that you are trying to co-parent cooperatively which is what the court wants to see.

If the relationship with your Ex is tense

Keep a journal of disputes that the two of you had about parenting for your future lawyer’s reference. Naturally, don’t send your ex a copy of this document. If your ex is denying you time that you are already supposed to get without good cause, then go see a lawyer. Denying the other parent time that has already been agreed to/ordered by the court without good cause is usually seen as being harmful to the child and can lead the court to take parenting time away from the parent engaging in that behaviour and giving it to the other parent.

Communicate with your Ex about parenting issues in writing as much as you can

Even if there are arguments, don’t be provoked into harsh language. Write as though the judge is reading everything. Not only could that help your case later but such an approach might even prevent many disputes in the first place.

As routines become established, request increased parenting time

Every year or so, ask for and try to get some extra time with your child. If you feel your Ex is being unreasonable about granting requests for increased parenting time, it may be worth talking to a lawyer about other options. A court application may be a possibility but keep in mind that court proceedings create tension for everyone (including your child who loves both of you) and should be viewed as a last resort.

Key point to remember when young children are involved

When the child is young (typically under 14), parents have to be the ones who make decisions about the parenting arrangement. No one is allowed to deny the other parent time with a young child just because “the child does not want to go.” It is a parental decision, much like the child’s bedtime. However, when children hit their mid-teens, then the court will normally decide that the children can stay with whichever parent they want to. In their early teens, things can be ambiguous, and you should speak to a lawyer about your particular situation.

The next article in this series will deal with child support.

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