Do Criminal Charges Affect Your Parenting (Child Custody) Rights?
Understanding the Relationship Between Criminal Charges and Family Law Cases
Have you been criminally charged and served divorce papers? Navigating the family law system can be tricky, but navigating both the criminal justice system and a family law case can be emotionally and financially constraining. Although family law and criminal cases run separately, they can have an impact on your right to parenting time and decision-making responsibility for your children. The major factor that the Court considers is the best interests of the children and whether the crime affects your ability to be a good parent to your children.
The Best Interests of the Children
Section 16(3) of the Divorce Act and section 24 (3) of the Children’s Law Reform Act explicitly outlines the factors that courts must consider when determining the best interests of a child. These factors include the child’s physical, emotional, and psychological well-being, as well as their cultural and linguistic upbringing, and if there has been any family violence, among other factors.
How Past Criminal Convictions Affect Parenting Time Decisions
If you have been criminally convicted in the past for a crime that is non-violent in nature and does not involve your spouse and or the children, then this usually will not affect your right to parenting time. However, if the past criminal conduct involves your spouse and or the child has observed the incident(s) of abuse this can influence the family proceeding, and your right to parenting time. How much influence the past criminal conduct will have on your right to parenting time varies from case to case.
How Does The Court Decide Parenting Time in Cases of Criminal Charges
Most often, if you have been charged with domestic abuse against your spouse you will be released on bail with certain conditions. The terms of the bail usually include that you are not allowed to return to the residence that you resided in previously with your spouse and children, and that you cannot directly contact your spouse. In this situation, your spouse may use your criminal charge(s) against you to restrict parenting time.
In Rezwan v Rezwan both parties were seeking to vary parenting time. The couple had one child who was five years old. The mother left the residence with the child, neighbours who witnessed the circumstances called the police and charges against the father were pending. The father had not seen his child since the mother left the residence. He was seeking a regular parenting time schedule, including weekends and overnights, while the mother opposed this and was seeking a limited supervised parenting time and virtual parenting time for the father.
The Court stated that the “criminal justice system should not be weaponized and used in family law proceedings for strategic purposes to gain leverage.” Further, in V.S.J. v L.J.G. the Court stated that the right of a child to visit a parent, and to form an attachment with that parent is an inherent fundamental right and should “…only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort.” Ultimately, the court applying the principles of the best interests of the children stated that it is in the best interests of the child to have a loving relationship with her father and paternal grandparents, with supervised parenting time with the paternal grandparents. The Court further stated that it is not in the best interest of the child to have overnights on weeknights as she was transitioning to full-time in person school. The court’s decision emphasizes the need for thorough evidence that looks at the best interest of the child when it comes to parenting time when a parent has a criminal record or when charges have been laid, but there has been no conviction.
How Domestic Abuse Charges Can Influence Parenting Time Arrangements
Exploring the Different Types of Parenting Time
1. What is Reasonable Parenting Time?
This parenting time is also known as liberal and generous parenting time, is usually suggested to clients who generally get along and can cooperate with one another. This type of parenting time allows the parents to informally make arrangements amongst themselves in regards to parenting time. This option allows parents to be flexible and the parenting time arrangement can easily be changed, as needed.
2. What is Fixed Parenting Time?
This type of parenting time refers to a fixed schedule. The fixed schedule will include how many times per week the child spends with a parent on a weekly basis, on holidays, long weekends, birthdays and for religious events. The fixed parenting time can also include the pick up and drop off location, and any other conditions that you feel should be included in the plan.
3. What is Supervised Parenting Time?
This parenting time is the most onerous condition that can be placed. This type of parenting time includes supervision by another individual. This may include a relative, an agreeable third-party individual, a social worker or a children’s aid worker.
Your Right to Parenting Time After a Criminal Charge
In Ontario it is important to remember that although you have been criminally charged or you have a prior criminal record it is your right to have parenting time with your child or children. Only in the most extreme cases parenting time should be denied or restricted heavily.
Navigating the intricacies of family law and criminal law can be tricky. At Nazarain Law, we understand the complexities involved in this legal process and are committed to meeting your needs and allowing you to have parenting time with your children.
Key Takeaways:
- Parenting time decisions are based on the best interests of the child and may be affected by past criminal conduct.
- Criminal charges alone (without a conviction) may influence parenting time, but courts aim to avoid using them strategically in family disputes.
- Violence or abuse involving the family or witnessed by the child is more likely to impact parenting time decisions.
- The child’s right to maintain a relationship with both parents is a priority unless extreme circumstances exist.
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Disclaimer
The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.
