Sanctuary for the Abused
Sunday, April 23, 2006
Surviving the System: Custody and Access Struggles
By Gwen O'Reilly
The most important thing to remember if you are leaving a relationship is to take your children with you if you can! Apply for interim custody right away. If your partner is violent and/or abusive and you are afraid of him, you may be able to get a judge to grant an ex-parte order – legal custody without notification to the other parent. Women's shelters can help you get a lawyer and go through the legal process. If you cannot take your children with you, or are prevented from doing so, go to court with an application for custody as soon as you can. Any time that elapses with the children in the other parent's care will be seen as your acceptance of their fitness as a parent, and could be construed as a lack of interest in your children. Do not agree to joint custody, unless you want to co-parent with your ex-partner. If possible, apply for child support at the same time you are applying for custody - it is easier to get subsidized legal assistance at this point.
Decisions about access arrangements are very important - think them out carefully. First of all - is your ex partner generally responsible? Will your children be safe and well treated? If not, you should consider asking for no access, or at least supervised access. Unfortunately, violence directed at you will not necessarily convince a judge that your ex-partner should have restricted access. If your safety is an issue, try to get supervised or third party exchanges, so you do not have to face your ex-partner. If you are in the difficult position of having a restraining order against someone who has an access order to see your children, make sure local police are well (and repeatedly) informed about the situation.
Other questions to think about: What will happen when your children are older, in school, in extra curricular activities or able to travel alone? How much time does it take for your kids to get back and forth, and what is the least disruptive schedule for them? In what circumstances would you cancel or deny access – when your child is sick, upset, or if the other parent's circumstances change? What will happen if you start a new relationship or job, or move to another place? Are there grandparents involved on either side? When can your children visit extended family? Be as specific as possible about times and dates for access so that there is no room for argument. Beware of agreeing to any arrangements you will have trouble fulfilling. Keep a journal or record of your ex-partner's use of access, what transpired and what shape the kids were in when they returned.
If you have lost custody, and hope to get it back or have access increased, ALWAYS exercise your access to your children, unless you are afraid for your safety. If the custodial parent makes this difficult or impossible, try to get proof each time that you have made attempts to visit or phone your children. Try to find creative ways to stay in touch through letters, e-mails etc.
Every agency has a different mandate, and a different set of rules for making decisions about your case. Find out this information if you can. When you are going through an intake procedure, such as for legal aid, NEVER minimize violence or abuse. Make sure you tell them clearly that you have reason to be afraid of your ex partner. Ask if they have special considerations for women coming out of violent relationships, and if so, tell them you want those criteria to apply to you. If you are turned down, ask why, and find out how to appeal. Be especially careful of the information you give to workers whose job it is to judge or observe your fitness as a parent - child protection workers, psychologists, supervised access workers, even family counsellors. Never think of them as "being on your side" no matter how sympathetic they appear. When telling your story to professionals, give a factual account of any violence or abuse you have endured, and make sure to include the impact on the children. Never dwell on how your ex has mistreated, cheated on or bad mouthed you (even though these things may be true). Workers may interpret this as selfish or vengeful behaviour. Express your concerns for your children. It is best to prepare and present a practical plan about how you intend to provide for their emotional and physical needs, now and in the future.
Last, but not least - get good support from an appropriate place. Custody and access struggles can go on for years, and be continually adversarial. Mutual friends and even family are soon exhausted by the conflict. Children get caught in between. All these people may also be an inadvertent source of information for a manipulative ex-partner. Better to use a trusted, objective friend who is not too close to your family or ex-partner, or seek out good counselling.
Gwen O'Reilly has been the Coordinator of the Northwestern Ontario Women's Centre in Thunder Bay for 10 years. Helping individual women with child custody, access and support issues and fighting systemic bias in family law has been the main focus of her work for the past 5 years.