If you or your child are experiencing abuse from your spouse, this might impact the court’s decision when determining the custody of your children. However, every case is different and the specific facts must be considered.
Section 24 of the Children’s Law Reform Act states that any determination with regards to custody and access will be based on the best interests of the child. The court will consider various factors, such as:
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.
If a parent has been abusive in the past, section 24(3) states that this past conduct is only relevant if it reflects that person’s ability to act as a 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 even primary residence of the child). This may appear to be contrary to the best interests of the child, which is why it is important that this section is read together with s. 24(4). Section 24(4) allows the court to consider past conduct when it involves violence or abuse against a spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.
Further, if it is not in the best interests of the child to be consistently exposed to a parent who is abusing the other parent, joint custody may not be permitted and supervised access may be imposed by the court.