Parents’ rights after separation
Many parents think that they have inalienable rights as a parent and that those rights do not change as the family circumstances do. This is not true. One of the surest ways for a parents self-perceived rights in regard to their children to be diminished is for a parent to react wrongly when the other parent takes the child(ren) and move out of the family home with them.
Technically speaking, if there is no court Order or contract, the default is that the parents share joint custody and should have equal rights to parenting time (access) with the child(ren). Unfortunately for the parent who gets left behind when the children are moved out, this is often not the practical reality.
This is because when making decisions about custody and access the “best interests of the child” is the fundamental principle guiding judicial Orders regarding custody and access. This concept has many meanings and comprises many concepts, such as the “maximum contact principle” and the judicial tendency to respect the “status quo”
How one parent gains the advantage during a separation
The maximum contact principle always favors giving the child as much access to both parents as possible. This principle is powerful, but it is not determinative to the best interests of the child. very often, this concept is overridden by the child(ren’s) other needs, such as the need for a stable environment to grow and develop. This need for stability empowers a key concept that often determines what a court will consider to be in the best interests of the child, the status quo.
Whatever situation exists, for an extended period of time becomes the new status quo, and this can work against parents who do not have de facto control and residence of their child(ren) in a variety of ways.
Often times, when one parent moves out with the children, the parents do not act as though they are sharing custody and have equal rights to residence of the children. Rather, the parent who has de facto residence of the children often uses this de facto status quo to dictate terms and engage in long drawn out and often times ambiguous and ever-changing decision making and access arrangements.
If the parent that lacks de facto residence of the children plays along with these ambiguous and informal negotiations, they run the risk of spending months or trying to resolve the matter without the help of lawyers or the courts. If these negotiations lead to a pattern of minimized access, care of the children and decision making, they can cost a parent their rights to see their children and make decisions about their education, health and moral/religious upbringing as much as they would otherwise have had the right to do.
Many parents wait until they have been increasingly denied access to their children and control over their children’s lives before taking legal action to protect that access and decision making power.
What a parent who is caught in unfavorable informal separation negotiations should do
The most important thing that a parent who is caught in an informal situation where they are being denied the amount of access and decision-making power that they should have can do is simple. Act fast, consult a lawyer, and work out a strategy.
If little time has passed since separation, the de facto non-custodial parent may regain or retain their equal status and rights as parent relatively quickly and with little headache.
As more time passes, that same parent, will be increasingly likely to be required to build access and involvement in their children’s lives back up incrementally as well as to deal with a needlessly prolonged legal matter from a disadvantageous starting point.
Regardless of the situation, the important thing is to act now. Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law. Contact Us.