Will a Judge always let the kids live with the Mother after a separation?

Years ago, it used to be assumed that the children were always best taken care of by their mother.  This was particularly thought to be true when the children were young.  This presumption was called “the tender years doctrine.”  Courts used to support this social assumption and, if a parenting application were to be heard, a judge would typically order that the children should live with their mother rather than their father.

This is no longer the default presumption.  In Canadian family law, the best interests of the children are the most important considerations.  Therefore, custody, parenting or access arrangements ordered by the courts are usually constructed to support the children’s best interests, which will depend upon their individual circumstances.

From a legal perspective, in most cases, it is assumed that the children’s best interests are best fostered by having a good relationship with both parents.  The judge may consider many factors in deciding how much time the children spend with each parent, such as the age of the child, the amount of time each parent spent with the child before the application, and any other relevant considerations. 

Gender is not a relevant consideration and there is no legal presumption that females are naturally better parents than males.

Don’t forget that you and the other parent, together and outside of court, can determine a parenting schedule that works best for your children.  If you can come up with an agreement, this can be made into a legally binding court order without having to litigate in court.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose

You should consult with a qualified attorney in your jurisdiction to receive specific legal information on your unique situation.

My work schedule has changed and now I can’t see my children at the time stipulated in the parenting order. What do I do?

Unfortunately work schedules can often change and this may affect your ability to see your children. If you have a parenting order or agreement with specified times and dates for parenting time, when your employer changes your work schedule you will have to try to amend the parenting order or agreement. Ideally the other parent would understand that you have little or no control over your work schedule and would accommodate a change to the parenting order or agreement with little formality. 

It may be helpful for you to bring up the possibility of your work schedule changing at the time that you are creating your parenting order or agreement. It is wise to build in provision into your parenting agreement that allows for the schedule to change if your work schedule changes. For example, if you see your children 30% of the time you could change the dates in the order to accommodate your new work schedule and still see the children 30% of the time.  Essentially, you and the other parent may agree to have a term in the order or agreement that allows that you each have the same proportion of time with the children regardless of your work schedule changes.

Another option is to structure your parenting order or agreement without specified dates for each parent, but with a guideline of how much time each parent will have parenting time (with the children).  That way, if either parent's schedule changes, or other events arise, the order or agreement is already sufficiently flexible to accommodate those unforeseen changes.  This kind of an agreement is much more flexible, but requires both parents to have good communication and co-parenting skills.

It is important that both you and the other parent remember that you are working together as co-parents, for the best interests of your children, regardless of the fact that you are now separated or divorced.   It may require some cooperation and some extra effort on your part or the part of the other parent, but it is usually considered in law to be in the best interests of children to have as much parenting time as possible with each parent. With this in mind, when a parent’s work schedule is changed, the children should not lose out on their time with that parent. 

If the other parent is not accommodating or willing to change your parenting order, you may seek the assistance of a family mediator or a collaborative lawyer to help to create a peaceful resolution. Should you need to go to court for assistance, a change to your work schedule would be sufficient grounds for amending a parenting order.

For even more family law tips & information, listen to Lisa's Radio Program, “Family Law Answers for Real Life” on demand at:
http://www.blogtalkradio.com/lisatose