Custody and access rights: a principle to keep in mind

A sensitive subject indeed, parental access rights during a family conflict will inevitably lead to emotionally charged discussions. Injustices are loudly proclaimed, and clients often invoke their right to have their children.

If there is one thing that parties to a family conflict must understand, it is this: although sympathetic to the parent's rights, the judge will only think of one thing when allocating custody or access rights: The best interests of the child.

The judge will take many factors into consideration to determine the best interests of the child. These will include, in particular, the following:

• stability
• parents' availability
• parental capacity
• the level of conflict between parents
• the child's age and their desire

The stability criterion will imply, among other things, that the level of access must take into account the proximity between the parents. The closer the parents live, the more feasible shared custody will be, since there will be no changes in schools, friends, or environment.

The parent who works nights may not be available for the children (except in exceptional circumstances).

Parental capacity is presumed and could be the subject of a separate text, but for the purposes of this exercise, it is a question of fact. The party contesting the other parent's capacity will have to demonstrate, among other things, problems with parenting, excessive drug or alcohol use.

The level of conflict between parents will often be proportional to the stability of the children's lives. If parents cannot communicate without resorting to violence, it will be difficult for a judge to facilitate greater access.

A judge once said in one of my cases that he had to choose the parent who met these criteria, not the best parent. This same judge had said that he sometimes had to choose between the lesser of two evils. Ultimately, if a parent is perfectly adequate but works nights, they won't necessarily be available to care for the children and won't be granted custody.

It is very important to understand this principle of the best interests of the child when leaving your first meeting with your family law attorney and to keep that in mind throughout your life.