If you are a father getting divorced and want to know your rights, read on: Most pressing question often is, what are my chances of getting custody of my children? Many fathers automatically assume that they cannot get full or even shared custody – that is not true!
In past generations (the baby boomer era and before), after a separation or divorce, it was expected that the mother would have custody of the children. Women in general were more available as they did not necessarily have demanding jobs if they worked at all and it was assumed that they should stay home to take care of the children and that mothers and fathers had set roles. However, our world has drastically changed. Fathers today are involved in their children’s day-to-day lives and shared custody is the reality for many divorced or separated parents. Fathers have the same rights as mothers and your bond with your child is just as important to develop and maintain.
Over the past few years, several demographic and legislative changes, combined with societal changes of mentality and behaviour have resulted in the “new father”, who is involved in the relationship with his children and in taking charge of parental activities. This is the case in Quebec as well as in many industrialized countries (https://www.mfa.gouv.qc.ca/fr/publication/Documents/les-Peres-du-Qc.pdf).
In Quebec, custody is decided based on the best interest of the child. The best interest of the child is to be in shared custody with both parents (the courts tend to favour this if possible). A father can also be granted sole custody of the children if the court concludes that it is in the children’s best interest. The courts feel above all that it is important for children to have a meaningful relationship with both parents and that the divorce should not be an infringement.
One of the main cases that outlines the best interest of the child is from the Quebec Court of Appeal, Droit de la famille – 071132I. Some of the factors to consider are as follows:
(1) the needs of the child and the parent’s ability to meet the child’s needs
(2) the emotional relationship between the child and the parents
(3) the emotional relationship between the child and other family members (ex: grandparents)
(4) the stability of the child
(5) the child’s psychosocial environment
(6) the physical and mental health of the child and the child’s custodial parent
(7) the actual availability of the parents
(8) the parents’ lifestyle habits if these have a direct impact on the child
(9) the non-separation of siblings
(10) the wishes of the child and willingness to foster the relationship with the other parent.
In order for joint custody to be a viable option, both parents must be able to give the child the stability he or she needs to develop properly, be able to take care of the child, communicate with each other without arguing, and be able to co-parent (https://www.justice.gouv.qc.ca/en/couples-and-families/separation-and-divorce/children-a-joint-responsibility/main-principles-used-to-determine-child-custody/).
At the end of the day, if you are a good parent and are able to provide your child love, stability and tend to their needs, you need to be patient with the process despite whatever challenges you may have faced, and the outcome with have the results you are seeking. The best advice is not to get discouraged with the duration of the process, because in order to demonstrate to the court that is in the children’s best interest, if you are faced with resistance from the mother of your children and if she has always been the primary caregiver, you have to demonstrate that there is nothing barring you from sharing custody despite allegations that may have been made against you. During the trial both parents will testimony and the judge will determine whose version of the facts seems most accurate and truthful. The lawyers will then plead your case and use the proof from the testimonies at trial, case law and arguments in order to have the judge rule in your favour.
Read More: I am a grandparent: what are my rights?
If you are a father who is fighting for custody of your children, we recommend the following (https://www.divorcemag.com/articles/custody-tips-for-dads):
1. Immerse yourself in your child’s life: be an active parent who attends school meetings, pick the kids up from school, bring the kids to doctor’s appointments, attend sports games, etc. In doing so, all the professionals around your children (doctors, caregivers, coaches, teachers) know about your involvement in your children’s lives and later down the line, can testify to the fact that you are an active parent. This will also strengthen your bond with their children, which is the ultimate goal. Your child will feel your constant support and love – which is what it is all about!
2. Document everything you say and do right from the time you decide to part ways with your spouse/partner: if you are going to court to fight for custody, you will need evidence of yours and your spouse’s actions with respect to your children. Maintain records of when you visited with your children or were prevented from doing so, the activities you did with them, take photos to document your relationship. A judge is not with you during these times and can only make a decision based on what they see in front of them in court, therefore it is important to give them the best possible picture of your life with your children and the role you play.
3. Make it clear from the start that you are going to fight for your rights to obtain custody and visitation. The best advice is not to get discouraged with the duration of the process, because in order to demonstrate to the court that is in the children’s best interest, it takes times and patience. If you are faced with resistance from the mother of your children and if she has always been the primary caregiver, you have to demonstrate that there is nothing barring you from sharing custody despite allegations that may have been made against you. During the trial both parents will testimony and the judge will determine whose version of the facts seems most accurate and truthful. The lawyers will then plead your case and use the proof from the testimonies at trial, case law and arguments in order to have the judge rule in your favour.
If you are in a custody battle that you feel you will never win, do not get discouraged! We are here to support you and fight for your rights and above all for the best interest of your child.
Do not hesitate to contact us with questions or concerns!