Custody and Access: Adultery, the New Partner and Abuse

In this video, we'll be touching on the issues of adultery, re-partnering, and abuse in the context of family law.

Hello, my name is Veronica Yeung and I am a lawyer with the Feldstein Family Law Group.

In this video, I touch upon the issues of adultery, re-partnering, and abuse in the context of child custody and access.

As per the Section 24(3) of the Children’s Law Reform Act, past conduct of a parent is not considered when dealing with custody / access issues if that conduct or behavior does not impact their effectiveness as a parent. However, this can be interpreted broadly in instances of infidelity and abuse.

Let me be clear – simply having an affair is not grounds on which people lose custody or access to their children.

However, if you or your spouse committed adultery and are planning to build a relationship with this third person, it may impact custody and access to children of your original relationship. If your new spouse or partner intends to move in immediately after your separation and you want your children to live with you as well, this may pose a problem. For children of any age, it can be confusing and upsetting to see mom and dad together one day and then suddenly, mom or dad is sharing a bed, being affectionate with another person, or creating a new family structure.

To expose a child to this type of trauma would be considered insensitive by most judges and not in the child’s best interests. What this behavior communicates to the court is that you as a parent are unable to put your child’s needs ahead of your own desires.

Instead, be smart, be respectful of your children’s experience of the separation, have some patience and give it time before you start introducing a new partner to your children. Be sure that this person is around for the long run and understands that your priority is to be a parent first and a partner second. Failure to take these steps may mean an uphill battle in seeking custody of your children, which can damage them in the long run.
Abuse of a child, family member, or romantic partner is an important factor in custody and access cases. It is the exception to section 24(3) of the Children’s Law Reform Act and any past abusive behavior by a parent will be considered by a judge when determining a child’s best interests. Abuse can be physical and / or emotional, and both forms are recognized by the court.

When considering custody issues, judges will take into account the parents’ ability to collaborate and co-parent. In situations of joint custody, parties must be able to discuss all major decisions regarding the children and this can be problematic where there is a substantiated history of abuse by one spouse against the other. No judge would force a survivor of domestic abuse to interact with their abuser and would also be hesitant to expose a child to such parental interactions. As such, a parent’s abusive behavior towards the other parent can hurt their chances at gaining shared custody of the children, even if the abusive behavior was never directed at the children in question.

As always in family law, the best interests of the children are paramount and that means every action you take within the family context can be considered in relation to their well-being for the purposes of custody and access.

For more information, please call (905) 581-7222 to schedule a consultation with one of our family law lawyers, or visit our website.

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