ACCESS TO CHILDREN – Time to Change the Rules

Why are we still arguing about establishing basic access or parenting rights in 2018?  One of the most frustrating areas within the practice of family law is the fight that is mounted to establish parenting rights for the parent, usually the father, who no longer resides with the child. It is time to reflect on why the courts and our adversarial system allow for warring parents to advance their own personal agendas in denying or restricting to the other parent their parenting time with their children.

The law sets out the principles with respect to access including the best interests of the child and the maximum contact principle which provides that the child ought to have as much contact with each parent as is consistent with his or her best interests. Unfortunately, it is all too commonplace for one parent to claim a restriction of the other parent’s time with the child.

Of course, it goes without saying, that in cases of domestic violence, drug and/or alcohol abuse or neglect, parenting time may be restricted or supervised. This blog does not address those situations but rather situations in which both parents are competent to care for their child or children and the system permits or even encourages the ability of one parent to seriously curtail the parenting rights of the other for little or no apparent reason.

My modest proposal is that we adopt a default access schedule which provides for the minimum parenting time for the parent not residing with the children to have with the children, barring extraordinary circumstances. Many schedules read as follows: every other weekend and Wednesday after school to Thursday after school with holidays to be shared equally between the parties. It is likely that a schedule such as this will benefit both parties and the children involved. But it is often a costly battle that is mounted before the parties reach agreement on this kind of schedule.

If we establish a default parenting schedule such as this, the quarrel over the children and their rights to maximum contact with both parents will likely be restricted to serious situations that do require the court’s assistance in resolving. A default schedule may aid in reducing the use of the child as pawn in the emotional contest between the parents. Establishing a default access schedule can be likened to the establishment of the Child Support Guidelines which helped streamline the support issues and as well the Spousal Support Guidelines, although without legislative authority, which offer assistance to the parties in determining an appropriate quantum and duration of support.

The court system is overrun with family law litigants, many self-represented, many squandering limited resources on expensive litigation and many fighting for issues that ought not to be fought over. The parenting rights of a parent being one. The spectrum of access orders is wide.  Access orders are inconsistent and can be unpredictable.  An underlying assumption prioritizing mothers over fathers often lies at the heart of access decisions, despite wide spread social science research supporting the importance of early bonding between fathers and children which requires frequent and regular access to be established. We have recently recognized that   even the use of “custody’ and ‘access’ encourages the marginalization of the so-called access parent and delegitimizes the rights of the child to equal and meaningful parenting.

In one case I am aware of, the parties had a short-term marriage which ended shortly after the child’s birth. Both parents had been equally involved in the child’s primary care, which had been challenging because the baby had feeding difficulties. Both parents had undergone extensive training by medical personnel as to the administration of the proper care for the child. At the breakdown of the marriage the child had been in the care of the father for extended periods of time with the mother’s consent, although the child lived with the mother. Once the mother retained counsel, however, the father’s access was restricted and the mother began to characterize the father as less capable in caring for the child than she.  The court ordered limited access per week to the father, with no overnights. There was no foundation for such restricted access and the father continues to fight for more parenting time with his child. The medical issues are resolved and the mother is firmly committed to marginalizing the father/child relationship.  The present system has emboldened the mother to pursue this agenda.

This case is simple and straightforward. Both parents are capable and loving. There is no need for the expensive and relentless litigation that these two parents are engaged in.

With a default and prescribed access schedule in place the child would be secure in its relationship with both parents and not used as a pawn to advance the emotional fallout out from a failed marriage. Instead the court system not only condones this behaviour but actively encourages it by giving credence to extreme positions which are predicated on getting even with a former spouse or partner.

 

GILLIAN BOOKMAN is a family law lawyer with Bookman Law Professional Corporation in Toronto, Canada. She can be reached by email at [email protected] or telephone at 416-488-2243