When it comes to questions of child custody and visitation rights, a woman, as a mother, has no more legal rights than a man, as a father. In the past, certain social and historical stereotypes may have persisted to the advantage or disadvantage of women when it came custody and access decisions. Now, with an understanding that children benefit from a relationship with both parents and with more women working full-time and resultantly spending less time at home, mothers often have no real advantage over fathers in custody and access decisions.
Joint Custody Is the Norm?
It may be incorrect to say that joint custody is the default when parents split up, as every case is fact-driven and context-specific. There is no one type of custody arrangement that, in a vacuum, is considered preferable to others. However, that joint custody is the default scenario is true in that mothers and fathers are assumed to be on an equal playing field when it comes to who will be granted custody, absent other facts or a complete inability to communicate between parents.
In other words, no presumptions are to be made about the parenting skills, parenting experience, personality, availability, or nurturing nature of a parent based on sex or gender. Sometimes people assume that women will have an automatic advantage, given stereotypes that women spend more time with their children, are more nurturing but the Courts should not indulge these stereotypes, and instead look at the specific facts of each case.
Challenges Often Faced by Women as Mothers
Despite that courts will start on an even playing field and will assess all evidence presented in a custody matter, women and men are still not always on an even playing field when it comes to resources, and certain stereotypes persist that can be harmful to women. For example, although women represent an increasingly larger percentage of the full-time workforce, a stereotype still looms that women should primarily handle domestic work, including care for children.
Also persisting is the notion that it is more ideal for the woman to take parental leave than the man, despite that both are equally entitled to take parental leave. Because of this, it is often still women who put their careers on hold, or pursue part-time work in the course of their sense of family responsibility. When women put their careers on hold for reasons of raising a family, they may more often suffer financial burden in the face of a separation or divorce, and subsequently, in a custody dispute.
We must collectively work to combat these stereotypes. Lawyers are increasingly aware of how these stereotypes are used in malice to skew the facts in custody disputes. A good lawyer will always seek to present the most important facts to the court to explain why a mother has taken certain step or behaviours, and the legitimacy of her behaviours in light of her unique situation.
How a Mother May Retain Sole Custody
A mother, like a father, may be granted an order for sole custody where it is evident that she has been more actively involved in her children’s lives, spends more time with the children, takes a greater interest in their academic achievement and extra-curricular activities, has a stable temperament, and exhibits a living situation that can adequately provide for the children.
In Fawcett v. Richards, 2009 CanLII 28644 (ON SC), a mother was granted sole custody of her son, with the father retaining some access rights, on the basis that she was more involving with her son’s academic life, was more in tune with his medical situation, and that the father exhibited some signs of anger issues. In addition, the mother was on more stable footing financially, making approximately $25,000 more per annum than the father. However, in this particular case, it appears that the court did not consider this to be a particularly relevant consideration.
Having better financial resources is not always a relevant factor, provided that the child is still adequately cared for, won’t be forced to undergo any drastic changes to his or her life, and the parent is sufficiently available to care for the child.
How a Mother May Lose Custody
Where a mother’s life circumstances change such that she is unable to adequately care for the children, a father may seek an order entitling him to sole custody, even where the mother previously had custody. While we cannot always control the things that go wrong in our lives, it is important to keep a clear head, and be open to compromise at the appropriate times.
In the decision McSwain v. McSwain, 2010 ONCG 426, a father brought an application to seek sole custody of his children at a time when the mother had become seriously ill due to liver failure, and unable to care for the children. At all times, the mother insisted that she ought to retain custody, despite her condition.
In this litigation, it was found that the mother was not forthcoming with the court, omitted information in her sworn affidavit with respect to her medical condition and the fact that it was caused by excess alcohol consumption, and at no time showed any willingness to compromise with the father on an agreeable custody arrangement. These factors weighed heavily against her retaining custody.
The case is a cautionary tale that, where a mother refuses to compromise with her ex-spouse, fails to act reasonably in negotiating a revised or temporary custody arrangement, and fails to be forthcoming with the court, she may lose more than she bargained for.
Contact Epstein & Associates, Child Custody Lawyers in Barrie & Newmarket
If you are entering a separation and are concerned about custody and/or access of your children, don’t wait any longer – contact us. Issues of custody and/or access in Barrie & Newmarket often need legal intervention and the sooner it comes, the better it may be for your children in the long run. For help as a mother seeking custody rights, call our Barrie family lawyers today at 1-866-463-2266.