What is in the best interest of your children? Two things have happened which has seen the Leave it To Beaver family picture change in the as a result of the divorce process. First, is the 1979 movie “Kramer vs Kramer” and the second, the Father’s Rights movement. Gone are the days when the general presumption in the face of divorce is mom assuming full care and custody over the children. In the movie Kramer vs Kramer, high power working mom was challenged with the interface of equal rights and opportunity for women in the workplace vs June Cleaver stay at home primary caregiver. Closely on it’s heals was the very needed Father’s rights movement. Moms and Dads faced a new dilemma – who is the better parent? With that came terms like “the Best Interest of the Child”, “Primary Care person” and the dreaded “Parental Alienation”, the last often confused with “Realistic Estrangement”.
Probably the most toxic ingredient in the mix is the calculation of Child Support and its contribution and motivation in the strategic blueprint of divorcing with children.
During the crisis of divorce, most parents fear whether their children will emerge unscathed. Any reasonable and empathetic parent sincerely believes in the value of his or her children having a healthy relationship with both parents. Ideally, parents deliberately work on comforting and reassuring the children that no harm will come to them. At the same time, both try to strengthen their parent-child relationships without degrading the other parent or causing the children to feel divided loyalty. They encourage visits, talk kindly of the other parent in the children’s presence, and set aside their own negative feelings to avoid causing the children distress. They are sensitive to the children’s needs and encourage positive feelings toward the other parent. This outcome is the goal of not only the parents and children, but also the attorneys and judge involved in the case.
However, any number of events can destroy the fragile balance of peace between parents. If this happens, an injured parent may seek comfort by aligning with the children, especially since he or she may feel threatened by the children’s love for the other parent.
In unfriendly divorces, the effects are predictable. Custody litigation or struggles for parenting time creates unavoidable competition between parents. Children feel pulled in many directions as long as both parents want custody or feel they must fight for their fair share of time. Afraid of losing custody, a parent may feel an urgency to align with the children to help ensure victory. The other parent may retaliate with an insurgence of passion for winning their cause. They may have difficulty accepting that they must compete against each other to prove to the court that making them the custodial parent is in the children’s best interest. The struggle between two passionate parents is a byproduct of modern-day divorce, and it sets the stage for alienation.
Alienation will continue as long as divorces – and custody battles – continue to increase at alarming rates. More fathers are becoming more comfortable in a nurturing and caretaking role and no longer adhere to the belief that they are genetically predisposed to be the inferior parent, and as a result they are seeking and being granted custody. Therefore, courts no longer automatically assume children are better off living with their mother. Meanwhile, mothers are realizing that the dream of marriage, a home, and children is not a guarantee of emotional fulfillment. Many Practice Wives now want an identity in both the workplace and the home. The high costs of living and supporting a family force women to work outside the home even when their children are very young. Consequently, women can no longer argue for custody because of an inherent birthright or ability to care for the children at home.
There are many definitions of parental alienation; however, a common theme is when a child is expressing extreme negative feelings about a parent which is not supported by the child’s experiences. In alienation cases a parent crosses the line of appropriate influence as a parent and attempts to manipulate the child to feel negatively about the other parent. This may include talking poorly about the other parent, telling the child about issues surrounding the separation/divorce or court, etc. So although the child may have a positive relationship with the other parent, it becomes negatively impacted by the behaviour of the manipulating parent. A common result of this alienating behaviour is the child no longer wishes to spend time with the other parent.
Unfortunately, courts have sometimes confused Parental Alienation with a term called “Realistic Estrangement”. Realistic Estrangement occurs not because one parent has negatively impacted the child’s relationship with the other parent (as in parental alienation); but occurs when the very parent that has alleged parental alienation is in fact the same parent responsible for the child(ren) not wanting to have a relationship with him or her. In these situations, the parent blames the other parent for the child(ren) not wanting to interact with him or her and fails to take into consideration that his or her own actions are the reasons for the child(ren) responses and reactions towards that parent.
The “best interests of the child” is a legal principle developed over time through legislation and case law. This principle results in a right of the child and a corresponding obligation upon the parent.
When custody and access are disputed in a court of law, a child’s right is considered paramount to all other rights; this means that the court will consider only the best interests of the child. A parent’s interests, however sincere and pressing, are second to those of the child.
Where parties are unable to agree upon what is best for their children, a court may look to a professional to make a formal assessment, relying upon the advice of the Office of the Children’s Lawyer, social workers or counseling professionals.
In determining what is in the best interest of a child, the court will weigh several factors when making an order for custody and access. Under the Children’s Law Reform Act:
The court shall consider all the child’s needs and circumstances, including:
– the love, affection and emotional ties between the child and, each person entitled to or claiming custody of or access to the child other members of the child’s family who reside with the child, and persons involved in the child’s care and upbringing
– the child’s views and preferences, if they can reasonably be ascertained;
– the length of time the child has lived in a stable home environment;
– the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
– the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
– the permanence and stability of the family unit with which it is proposed that the child will live;
– the ability of each person applying for custody of or access to the child to act as a parent; and
– the relationship by blood or through an adoption order between the child and each person who is a party to the application (CLRA, s.24(2)).
Though not listed as one of the above factors, courts will also consider any instances of domestic violence or concerns related to substance abuse when making an order for custody or access.
Practically speaking, it is the case law that determines how the above criteria are interpreted. Under the Children’s Law Reform Act, the mother and the father share an equal right to custody; there is no presumption of one parent’s right over the other. Given this default position, Canadian courts have helped define the best interest of the child through a number of custody and access cases.
Even with all this said and all the assessments and reports and papers and “opinions” as to what is in the Best Interest of the Child, it boils down to what is in the Best Interest of YOUR Child. Both the Practice Wife and the ex must consider the horrible impact bad parental actions will be on their children. It’s not a “what may happen”, it is a 100% “what will happen” as a result of ego driven, money driven or spiteful driven behavior which your children are being exposed to.
It is also with an almost 100% certainty that the alienating parent in the end loses. It may be an immediate or obvious loss but assuredly they will be called out by the court, by counsel, by third party protection agencies and last but far from least their own children- particularly when they themselves enter into their own adult relationships and are expected to contribute into a healthy thriving partnership.
The Practice Wife, the ex or any custodial adult must always keep in mind that their love for their child MUST supersede and take full precedence over their disdain or dislike towards the other parent. Bad behavior is abuse- there is no sugar coating that.
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Tomorrow’s blog…”Get Your Own Life – this one is taken, Divorcing the NPD/BPD”