The divorce process is undoubtedly very complicated. Division of assets and business, distribution of debts, alimony, etc, demand your critical attention. But things are different when children are involved. There is so much that has to be looked into. For example, the best way to explain separation to the kids, helping them adjust to the new life, and most importantly, which parent gets the child’s guardianship.
However, the matter is even more complex when domestic violence is involved. Usually, both parents are equally qualified for a child’s guardianship. But when there is an allegation of domestic violence, circumstances may become unfavorable for the accused parent. While some parents settle matters of child parenting without involving the courts, matters such as the one in question may require a court’s intervention.
Usually, courts are obliged to weigh the interests of both parties. But when domestic violence enters the scene, a judge often takes the matter rather seriously. After all, a child’s physical and emotional well-being is at stake in such situations.
Arguably, a judge may favour the other parent over the one blamed for domestic violence. Yet, a lot has to be taken into consideration before one reaches a decision. However, before we explore the effects of domestic violence on child guardianship cases, let us first examine these two crucial terms in detail.
Many people have the misconception that child guardianship refers to which parent the child will reside with. Contrarily, child guardianship actually means ‘decision-making power’. That is, a parent that wins a child’s decision-making has the power to make the decisions about the child’s well-being, upbringing, residence, schooling, etc. There are different types of child guardianship agreements that can be reached.
The latter is also known as intimate partner violence and constitutes actions that may count as ‘abuse’ in a domestic setting such as a marriage. However, in contrast to normal belief, the act is not restricted to physical violence but extends to verbal, emotional, and even sexual abuse. A broader view of the term also includes violence against children.
Now that we have a clearer view of the terms in question, let us look at the laws that govern child guardianship in Canada:
- The Federal Divorce Act
- Provincial legislations
- Family Law Act
- Any other law or previous case the judge deems relevant to the situation
Domestic violence further complicates the scene, and the court has to consider a lot more. Primarily, a judge is obliged to make a decision that is in the best interest of the child.
What Constitutes The Best Interest Of A Child?
- The parenting capabilities of both spouses
- The strength of the child’s bond with each parent
- Each parent’s daily schedule in comparison to that of a child’s
- Availability of other means of assistance to each spouse, such as grandparents
- The emotional, physical, and mental health of each spouse
- The proposals plans put forth by both parents
- Both spouses’ capabilities of providing better educational facilities and a general better standard of living
- Issues amongst siblings. For example, is there a special need to separate siblings or keep them together?
- Who was the main caregiver before the divorce?
- Any criminal proceeding involving either of the parents
- Any previous record of family violence
- If the child is above the age of twelve, their request to stay with a particular parent also receives consideration
These are just some of the basic items a court must consider when awarding the decision-making of a child to a parent. Even though both parents have an equal right to the guardianship of a child, domestic violence may completely change the situation (as discussed below).
The Role Of Domestic Violence On Child Guardianship
Normally, a parent’s past behavior does not have an impact on the child guardianship case unless the behavior is still prevalent and affects the parenting capabilities of an individual. However, it is usually difficult to prove domestic violence and it is just one of the aspects considered when granting decision-making rights.
When a parent is accused of any type of violence, the court has to consider its relevance to the parenting ability of the individual. If the court is satisfied that the accused parent is not capable of providing a safe dwelling to the child, the court may award guardianship to the other parent.
However, every case varies, and the decision reached depends upon the particular circumstances and facts of the case. These matters are better handled by reliable family lawyers.
About Peak Family Law
Are you overwhelmed by the complications of family disputes? Peak Family Law brings forth a diverse team of family lawyers that can diligently handle matters such as child guardianship, division of property, alimony claims, and divorce. Get a free consultation or contact us for further information.