Joint Custody in Divorce
byon 07-08-2012 at 02:58 AM (66 Views)
"There had been a expanding trend, in Ontario, in family members and divorce law, more than the last couple of years, for family courts to order joint custody of youngsters. The hope, by some, was that the parenting skills of the parties could be improved with awards of joint custody. The recent Ontario Court of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend into perspective.
In this selection, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate with out screaming at every single other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.
The Appeal Court held that, for an award of joint custody to be granted, there need to be some evidence that demonstrates, that despite the parents own strong conflict with each and every other, the parties can and have cooperated and communicated appropriately with 1 another. In this case there was evidence to the contrary, there was no expert evidence to help the trial judge establish how a joint custody order would advance the childs emotional and psychological demands and the child was also young to communicate her own wishes.
Around the same time this case was decided, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court upheld the trial judges order of joint custody. In this case the trial judge had the benefit of hearing the evidence of the Childrens Lawyer who presented the childrens wishes and who suggested joint custody. It was held that the trial judge had heard evidence from third parties with respect to cooperation and appropriate communication between the parties. The trial judge also looked at the history of co-parenting during the marriage and that regardless of their intense conflict, the parties could and had effectively communicated with every other and placed the interests of their young children ahead their own, when required.
To summarize, in Ontario joint custody cases, it would seem that the courts will now be seeking a lot more closely for evidence from third party and expert witnesses, which can demonstrate that the parties can and have cooperated and communicated appropriately and have been able to put aside their personal differences and conflict, for the benefit of the children. The lack of historical cooperation and appropriate communication between the parties will tremendously limit the success of a joint custody application. The assumption by some, that the granting of joint custody will enhance the parenting abilities of the parties, will not be a sufficient reason on its own to grant joint custody, in the absence of current excellent cooperation and communication amongst the parties. child custody attorney in manhattan ks"