Domestic Violence and the Impact on Child Custody

with Shelly Banihashemi

Domestic Violence and the Impact on Child Custody

Please note: The script may not be exactly what is spoken, but contains the same information as presented in the video.

My name is Shelly Banihashemi and I am an associate at the Feldstein Family Law Group. In today’s session, we will be discussing domestic violence in relationships and how it may impact the courts in determining custody of children.

The question is, will the courts award joint custody in a situation where one parent/spouse has been abusive, both verbally and physically? The Children’s Law Reform Act provides us with some answers.

Pursuant to s. 24 of the ,em>Children’s Law Reform Act, any determination with regards to custody and access will be based on the best interests of the child. That being said the court will consider numerous factors, such as the child’s needs and circumstances, including,

1. the love, affection and emotional ties between the child and,
1. each person entitled to or claiming custody of or access to the child,
2. other members of the child’s family who reside with the child, and
3. persons involved in the child’s care and upbringing;
2. the child’s views and preferences, if they can reasonably be ascertained;
3. the length of time the child has lived in a stable home environment;
4. 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;
5. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
6. the permanence and stability of the family unit with which it is proposed that the child will live;
7. the ability of each person applying for custody of or access to the child to act as a parent; and
8. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

If a parent has misbehaved in the past, Section 24 (3) of the Children’s Law Reform Act tells us that past conduct is only relevant if it in some way speaks to that person’s ability to parent. This seems to indicate that a verbally and physically abusive spouse who is an amazing parent may have a viable claim for custody (and potentially even primary residence of the child). This appears to be contrary to the best interests of the child which is why s. 24(3) must always be read in conjunction with s.24(4) regarding violence and abuse. Pursuant to this section:

Violence and abuse (4) In assessing a person’s ability to act as a parent, the court will consider whether the person has at any time committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

Therefore, even if a party wants to co-parent and may be agreeable to joint custody, if it is not in the best interests of the child or children to be consistently exposed to a parent who is mistreating the other parent, then until he/she seeks some form of anger management or counseling, supervised or extremely specified access may be the best option for the that party.

For more information regarding the best interests of the children, please visit our website at www.separation.ca.