Involving the Office of the Children’s Lawyer: Custody and Access and the Best Interests of the Child

It is not uncommon for someone to want to relocate after a divorce. If you still live in the marital residence, the familiar surroundings and memories may be too much for your heart to handle. Or in the process of reinventing yourself post-divorce you may want to take a new job, move closer to your friends and family, or simply wish to start fresh somewhere new. There are many reasons a person may want to move after going through a divorce, however if you have children you will need to think twice before making a big move.

Emotionally, it can be challenging for a child to move to an unfamiliar place. Often, they are most at ease in a familiar environment with access to family and friends. Changing schools, living in a new city or even a new house can be difficult on a child, especially after dealing with the emotional turmoil associated with divorce.

Legally, there are certain implications to relocating away from the current jurisdiction where the children ordinarily reside. Before moving you and the noncustodial parent can negotiate with the absence of a lawyer, a written agreement about the moce and any changes to visitation that may be needed. If you cannot reach an agreement about the move, you then must file an Application/Motion to the court to hear your matter and for a judge to make a decision before you move. Usually the court requires at least 30 days notice to the other parent of your court Application/Motion. It may take longer to reach an agreement with the other parent or get a court order. It is a good idea to give notice of 90 days before the move, as as soon as possible and to consult with a lawyer first. Upon receiving this notice, they can challenge your proposed change of residence or apply for a variation to the existing custody or access orders.

The leading case that sets out the legal test in determining mobility is Gordon vs. Goertz (1996) 2. S.C.R. 27

Similar to any other action involving variation of an existing custody order, the person challenging the relocation has to show that the move will result in a material change in circumstances affecting the child. Once this has been established, a judge will determine the best interests of the child in light of the relevant circumstances. These relevant circumstances include the existing custody and access relationship, the relationship between the child and the custodial parent, the views of the child, and the reason for the proposed change of residence among other circumstances. As with every other custody proceeding, the judges determination will turn on the best interests of the child. The judge’s inquiry is individualized and will involve all factors relevant to the case at hand.

Because mobility has become so easy in today’s society, often separation agreements or custody orders will address relocation and place specific restrictions on changing residences. Non-removal clauses that ban the extra-provincial removal of children without consent of the noncustodial parent. In these cases, the custodial parent who wishes to relocate will have to initiate the action by placing an application with the court.

If you are contemplating a move, you must consider the emotional needs of your child, as well as your former spouse’s right to challenge your relocation. Typically, courts only allow a custodial parent to relocate if the proposed move is in good faith and not intended to frustrate the noncustodial parent’s relationship with the child. Additionally, if a custodial parent relocates, they must be willing to accommodate the noncustodial parent’s access to the child; sometimes this means that the relocating parent will have to pay the additional costs of access.

In sum, if you are a custodial parent, moving isn’t as easy as just loading up the car and hitting the road – but it is still possible.

Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:

• Act of birth
• Presumption of paternity
• Uninterrupted possession of status
• Voluntary declaration

No. Even when the parents are unmarried, divorced, or separated, one parent cannot keep the child from seeing the other unless the court deems it appropriate to the child’s best interests.

Historically, mothers have been more likely to get sole custody of their child in both consent and contested orders, as they are usually the child’s primary caregiver. However, as more mothers also work outside the home, courts could also rule in favor of the father.

The majority of judges strive to make decisions that are in your children’s best interest. Giving full custody to one parent is usually the best option, except in cases with concerns such as child or substance abuse. This typically means keeping in contact with and maintaining relationships with both parents.
You should do everything possible to prepare for the subsequent child custody negotiations, whether you’re a parent seeking full custody or shared custody:
Be honest with yourself about your ability to manage things alone, in terms of practicality, finances, and other factors. You may get the result you want by presenting the strongest case for custody by doing the following:

• Make a Strategy: If custody is granted, a court will expect you to be ready. Compile thoughtful replies to hypothetical queries posed in court.
• Speak with people who have gone through the child custody procedure before you. They may provide you advice and tell you what to anticipate.
• Judges look for proof of a meaningful relationship in addition to making sure you can provide a child’s practical and basic needs. Simply put, be involved in your children’s lives.
• Continue to pay child support regularly, whether you’re asking the court for full or shared custody. When you start the procedure, you’ll want to make sure you have a strong track record.
• Keep a detailed log of your visitation schedule. This is a crucial aspect of obtaining child custody. Visitation records reflect how often you see your children under the present arrangements and your dependability, as well as dedication to them.
• During all child custody hearings, the court will inquire about acceptable living accommodations. Even if you live in a tiny apartment, you should create a unique and secure environment for your child.
• Courts may determine child custody in part by how you treat your child’s other parent. Being hostile or unpleasant to the other parent makes collaborative decision-making more complicated and can break apart parent-child ties. As a result, judges are more inclined to favor the parent who isn’t behaving badly.
• While parents typically spend a lot of time thinking about what they believe is best for their children, children’s perspectives are sometimes overlooked. The court will be interested in learning what the children desire and will most likely question them directly at some point throughout the proceedings. You can better inform your decision-making by asking your child what they think.

No. Parenting time and child support are different from each other. While it is a child’s right to be provided with financial support, it is also their right to spend time with their parents. Thus, even if the child support was cancelled the parent formerly supporting can still enjoy parenting time with the child.

“There is no fixed age for when a child can say which parent they want to live with after a divorce. However, by law, a child must be 16 years old to decide on this matter. The exception to this is when there is a court order stating that a child/ren must live with one parent until they turn 17 or 18.
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Under certain circumstances, it is possible to legally prevent your child/ren’s father from seeing or contacting them. It may be necessary if he presents a potential danger to your child/ren. If you were never married to the father of your child and there is no court order saying otherwise, you can do anything you want until paternity is confirmed.