She’s seeking sole custody? Is she trying to alienate me from my kids!

Jack is furious that Jill is seeking sole custody of their two children. He regards himself as a father who has always been involved with his children, and believes that he has much to offer his kids, both in terms of decision-making and in terms of the time they spend together.  Jack views Jill’s actions post- separation as an overt attempt to cut him out of the children’s lives, and “alienate” them from him. But is this the proper use of the term, “parental alienation?”

A parent who engages in alienating behaviour deliberately and actively campaigns to estrange his or her child from the other parent. Specifically, an alienating parent will talk negatively about the other parent or treat that parent disparagingly in the child’s presence; he or she may tell false stories and lie about the other parent directly to the child. Such parents will not allow their children to speak openly about the other parent in positive terms, or relate positive experiences they have had with the other parent. Moreover, alienating parents may subject their children to interrogation immediately following their return home from access visits, or create divided loyalties by refusing to allow the child to wear clothing purchased by the other parent or bring gifts home from the other parent.

 

Such behaviour on the part of the alienating parent typically occurs over extended periods of time. In response, a child who is alienated will consistently express negative feelings about a parent, or outright reject a parent, for reasons which are unjustified given the child’s past relationship with that parent and given the rejected parent’s conduct itself.

Courts must assess allegations of parental alienation on an individual basis, in order to determine whether a child’s fear or rejection of a parent is reasonable and justified given the circumstances of that particular case.  Was this child previously abused by her parent? Does the parent routinely miss or cancel access visits? What type of relationship did the child have with her parent prior to separation? If a child has valid reasons for exhibiting fear of his parent, or if there is a history which explains why the child refuses to attend access visits or engage with his parent, then it is inaccurate to claim that the child is alienated. If, on the other hand, a child who used to enjoy a loving and meaningful relationship with her parent is now truly fearful of that parent, or outright hostile toward that parent, then parental alienation may be at issue.

The court’s role in custody and access cases is to determine what is in the child’s best interests; it is not the court’s objective to reward or punish parents for their behaviour. Therefore, how courts respond to cases where parental alienation exists is not uniform. In certain cases, reunification or reintegration counselling may be recommended; a complete change to the existing custody and access regime may be ordered. In other instances, courts may find that to order any change to the status quo would cause further harm to the child.

So if you believe that your ex-spouse may be engaging in an alienating behaviour, don’t jump to conclusions.  Seek the assistance of a mental health professional who will be able to guide you through this process and make proper recommendations as to an intervention plan which may, or may not, involve hiring a lawyer.

What? You moved away with the children!

Jill and Jack have been arguing for quite a while now.  For Easter, Jack took the children on holidays to his family in Toronto.  On Easter Monday, Jack sent Jill a text message saying the children would not be returning home that night as he had decided to permanently move to Toronto with the children in order to be closer to his immediate family.  Jill is in a state of shock and her first instinct is to call the police and charge him with kidnapping! All Jill wants is to get the children safely home as quickly as possible. Does Jack have the right to move out of town without telling her?

 

While Jack may certainly move, he cannot do so with the children and most importantly without speaking with Jill who has legal options available to her.  The very first thing that Jill should do is to IMMEDIATELY speak with a family lawyer as in custody matters of this kind, acting with all speed is absolutely crucial.  Every hour and every day that Jill delays in taking court action works against her chances of getting back the children quickly.

 

Under no circumstances should Jill consent to Jack’s removal of the children or sign any agreement that deals with custody and access matters until she and her lawyer have reviewed it.  Similarly, nor should Jill say or write anything to Jack that could be interpreted as agreeing with his removal of the children from the family home.  Jill will also be required to start an urgent court proceeding against Jack for the children's return. Custody proceedings are very fact-specific and to save time and legal fees, Jill will need to provide her lawyer with the following information:

 

1. the family’s background (names of the parties and their children, dates of birth, length of relationship, employment, income, etc.);

 

2. Short timeline of the main events leading up to Jack's removal of the children;

 

3. List of family members, daycare providers and friends who can help her care for the children if the court orders their return to the family home;

 

4. why it would be in the children’s best interest to be in your care until the matter is sorted out, and;

 

5. what access, if any, do you propose the other parent to have.

 

The reason for the parent's moving is irrelevant to the court unless it helps to determine the parent's ability to provide for the children's needs. When making parenting decisions, the courts sole concern is the child’s best interest – what are the child's needs and the ability of each parent to satisfy those needs. Of course, the relationship that the child has with each parent will also be examined. Courts do not like to introduce instability into the children’s lives, nor do they want children to remain in environments that leave them vulnerable to emotional and physical harm. Thus, the trend in the Ontario courts has been to disallow the removal of the children from their family home if there is no compelling reason to show that such a move is in their best interests. In Jack’s case, for instance, the court could order for example that he return the children to Jill or have the police apprehend him and return the children to Jill.

 

Moving away with the children without proper discussion and agreement between both parents will not only disrupt the children’s lives, it will create lots of fear and unnecessary anxiety. Speaking to a family law professional and with the other parent before making such a move is a must!