This week, US Weekly reports that Jenelle Evans, star of the MTV show "Teen Mom 2", is fighting for custody of her eldest son. Jenelle gave her mother custody of Jace shortly after his birth because she was drinking, partying, and repeatedly getting into trouble with the law. Jenelle has a lengthy criminal record that includes breaking and entering, drug possession, and assault. Recently, however, Jenelle has graduated from college and is turning her life around. She is currently engaged to Nathan Griffin and lives with their one year old son, Kaiser.
If this case were being decided under Ontario law, the Children's Law Reform Act would apply. Section 29 of the Children's Law Reform Act provides that a court will not change an order in respect of custody or access unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
Since Jenelle is the person who seeks a change to an existing custody arrangement, she is the person who must establish that a material change has occurred. The Courts generally believe in maintaining the status quo custodial arrangements if the arrangement is working well for the child. Therefore, there is a heavy onus on Janelle to prove that the status quo should be disturbed.
Changes that may be sufficient grounds to modify a custody order include the following:
- The person with a right of custody is seriously negligent, abuses the child, or abuses drugs or alcohol and, as a result, is unable to care for the child.
- The person with a right of custody is planning to move with the child far away from a person with a right of access;
- The person with a right of custody appears to be alienating the child from the access parent or makes it extremely difficult for the access parent to visit the child;
- Where an older child expresses his or her desire to move to the other person's home.
If Janelle establishes that a material change has occurred, then the Court will make a fresh inquiry into all the facts of the case and determine what custodial arrangement is in the best interests of the child. It is possible that a Court may still decide that the son should continue living with the grandmother, despite finding that a material change in circumstance has occurred.
A Court may be inclined to award Jenelle custody because, under the current custodial arrangement, Jace and his younger half-brother are living separately. Sibling separation is generally considered not to be in children's best interests. Further, the report suggests that Jenelle's mother, Barbara, once kept Jace away from Janelle for over a month out of spite, even though Jace ordinarily stays with Jenelle on the weekends. Barbara also asks Jace to call her "mom", even though she is his grandmother and Jake has a continued relationship with Jenelle. Barbara's conduct may indicate that she is alienating Jace from his mother and is no longer able to act as a prudent parent. The decision as to who should have custody will depend on all of the facts of the case and will be decided in terms of what is in the child's best interest. Hopefully, the family will be able to work through this conflict and Jace will continue to have a meaningful and loving relationship with his mother and grandmother.