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.