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Rosie O'Donnell and her wife, Michelle Rounds, are divorcing after two and a half years of marriage. TMZ has recently reported that Michelle is seeking sole custody of their two-year-old adopted daughter, alleging that Rosie smokes marijuana and drinks too much alcohol. Further, Michelle has alleged that Rosie allows her 19-year-old son to have underage drinking parties (the legal drinking age in America is 21).

If this case were in Ontario, then the main consideration for determining custody is always the best interests of the child. When considering what is in the best interests of the child, a judge will consider numerous factors including, but not limited to, the following:

  • Who was the primary caregiver of the child during the marriage?
  • Is each parent applying for custody willing and able to provide the child with guidance and education, the necessaries of life, and any special needs of the child?
  • Will other family members (i.e. siblings) live with the child?
  • Will the parent, if awarded custody, encourage the child to have regular contact with the other parent?

Generally, the courts will not take into consideration the past conduct of any parent when making an order for child custody. However, if the conduct is violent, abusive, or otherwise undermines that person's ability to act as a parent, a Court may take such conduct into consideration. In Rosie and Michelle's case, Michelle would have to prove that her allegations that Rosie smokes marijuana and drinks excessively are true and such conduct interferes with her ability to parent. With respect to Rosie allowing her son to throw underage parties, this fact would likely be relevant only if the two-year-old was present for these parties and exposed to harm as a consequence.

To summarize, Courts are not inclined to consider the past conduct of parents when determining custody arrangements, unless the conduct affects a person's ability to act as a competent parent. In this matter, Rosie's alleged conduct may affect her ability to parent and may be considered by the Court if the matter were to be litigated in Ontario.