Earlier this year, we discussed how Jennifer Lopez and Marc Anthony, who separated in July 2011, were seemingly handling their divorce in a mature and constructive manner by working towards negotiating a settlement before filing for divorce.
Then in October 2011, Star Magazine reported that Lopez was having second thoughts about the divorce and would be "willing to patch things up." Nevertheless, in November 2011, Lopez was linked in the press to such A-listers as Bradley Cooper, and soon thereafter began dating a back-up dancer, Casper Smart.
As a result, the once amicable split began to turn into a nasty custody battle. According to US Magazine, Lopez and Anthony were apparently not seeing eye-to-eye on Lopez's choice of "rebound love." According to this source, after seeing pictures of Lopez and Smart on vacation with his children, Anthony banned Lopez from allowing Smart to drive with his children in the vehicle.
But the battle between the divorcing spouses doesn't end there. In early April, Anthony filed for divorce citing irreconcilable differences, asking that the two share joint legal and physical custody of their 4 year old twins. According to People Magazine, Anthony also requested that the court deny Lopez any spousal support if she requests it. The current battle between the celebrity ex's raises many issues with respect to custody, access, and support.
In Ontario, custody and access is decided by a simple formula: the best interest of the child (s. 16(8) Divorce Act and s. 20 Children's Law Reform Act).
The best interest of the child is determined by reference to the conditions, means, needs, and other circumstances of the child. Because this is the only standard, each case is decided on its merits, making custody rather uncertain. Moreover, the "best interest of the child" test does not take into account the legitimate interests of the parents to be involved in the child's life where those interests conflict with the best interest of the child. Tragically, this can sometimes lead to one parent being cut off from the child/children.
The best interest of the child test is difficult to apply, as it can often involve painful assessments about the realities of the situation. The process of determining custody and access can also be difficult for parents; it may seem as though their identity as a parent is being questioned, and this can cause the animosity one feels for an ex-spouse to resurface.
Also, there is the possibility for alienating behavior-when a child expresses unjustified hatred or unreasonably strong dislike for one parent, making access by the rejected parent difficult or impossible.
According to subsection s. 24(2) of the CLRA, in determining the best interest of the child, a court shall consider a number of factors, including but not limited to:
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) 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;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
The courts have developed a stable of experts to advise courts, including psychologists, and social workers who may be able to provide some idea of what "healthy development" is. s. 30 of the CLRA permits a court to appoint an expert to assess and report to the court on the needs of the child and abilities of the parents to satisfy those needs. Costs of experts are often apportioned between parents based on their ability to pay.
Back in August 2011, hollywoodlife.com reported that Lopez was seeking full custody of her twins. Hollybaby.com spoke with Vikki Ziegler, a US divorce attorney, who stated that "the presumption in many states...is that unless the mother is unfit, she will be the parent of primary residence and the father the alternative residence. But the court is going to look at the best interest of the children-there are a lot of factors involved." Nevertheless, the fact that Lopez has remained the primary caregiver in the interim separation period could be beneficial to Lopez's case.
In Ontario, it is not uncommon for the parent who has de facto custody after separation to maintain custody. This is because Ontario's legislation reflects a preference for stability and continuity, and accordingly will often favour the status quo.