Thread: How to proceed
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Old 04-25-2006, 11:18 AM
logicalvelocity logicalvelocity is offline
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10 In the Lewis case, I expressed my views as to the advantages of a joint custody order. One of the common complaints of the access parent in a sole custody regime is that the custodial parent will announce at the last minute that a particular access visit conflicts with other plans made for the child, such as a family visit or a sport activity, and unilaterally decide that the access parent must accept another time "to visit" under the threat of not seeing the child at all. Another is that the access parent will be told that if the child is not returned exactly on time after an access visit, future access will be "cut off." The threat of being "cut off" access is occasionally levelled at the parent who may be late in making support payments. In such instance, access parents often feel frustrated in their attempts to develop a relationship with their own child. They regard themselves as strangers, on the outside looking in. Resentment may be directed at the courts, which they may feel are the accomplices of the custodial parent, telling them when and where they can see their own child. Often an access parent will give up in frustration, taking on a more limited role in the life of his or her child, with the resulting loss to the child of the opportunity of developing a relationship with that parent. It is perfectly understandable that a parent, who may have played an important role in the rearing of his or her child, will feel frustrated if the custodial parent is now dictating the terms of access under the constant threat of a contempt application if a term is breached.

11 A joint custody order, on the other hand, has the psychological advantage of allowing parents to feel that they are participating equally in the life of their child and have the right to make some important decisions affecting their child's future. Joint custodial parents may be prepared to accept that they cannot determine what school their child will attend if they know that they can provide religious instruction during their care and control period, or enjoy such other rights as being able to obtain school and medical records without the frustration of having to go through a sole custodial parent. Thus, communication between parents does not become a necessary concomitant to a joint custody regime since decisions on important issues, such as schooling, religion, medical treatment, etc., will devolve upon that parent who has specified care and control of the child when he or she is attending school, going to church, and visiting the doctor.

12 I cannot agree with the suggestion that a sole custody order which entrusts all legal decision making in the hands of one parent will necessarily minimize the conflict between them. Parents who declare war on one another will continue to battle whatever order the court makes. I view the role of the court in custody matters as one of attempting to balance the competing interests of suitable parents, remembering that, above all, the best interests of the child are paramount. But it must be remembered that often what is in the best interests of the child is to know that both parents are interested in playing an important and possibly equal role in his or her life.

13 This is not to suggest that there may not be conflicting legal duties and responsibilities in a joint custody regime that will have to be resolved occasionally by the courts. In my experience, these problems are far outweighed by the frequent applications that are made to the court in those instances where sole custody has been granted. Joint custody orders are more apt to encourage the parents to co-operate than sole custody orders. In my view, the philosophy that joint custody orders can and should only be made whenever the parties are prepared to co-operate fully in every aspect of child rearing only encourages parents to refuse to co-operate so that they can pursue a sole custody order.


Last edited by logicalvelocity; 04-25-2006 at 11:29 AM.