Shared Parenting Argument Following Separation or Divorce
One look at the celebrity custody battles in the tabloids will tell you parenting issues can be highly disputed, emotionally charged, and stressful to navigate. And more often than not, problems arise from one fundamental disagreement: one wants shared parenting and the other does not agree and wants primary care of the child.
In Alberta, the Court of Queen’s Bench has released a decision which provides some of the factors weighing for and against shared parenting. In CAS v NPC, 2020 ABQB 421, the Court emphasizes there is no presumption in favour of any particular parenting arrangement, whether it is shared parenting or otherwise. The sole determining factor is the best interests of the child.
According to this case, there are numerous examples which support a shared parenting arrangement. They include:
- Both parties being capable and engaged parents;
- Good communication between the parents;
- No evidence that the child will not be properly cared for and have their needs met in the care of each parent;
- Adequate work and childcare arrangements after separation;
- A history of shared parenting by the parties;
- The parents having important and different interests and capabilities to pass on to the child;
- The child has spent significant time with the non-primary parent and has strong attachments to both parents;
- The child has expressed a preference for shared parenting and is of an age and maturity level where such wishes should be considered;
- A parenting assessment which recommends shared parenting;
- If shared parenting enhances the child’s exposure to a parent’s cultural background;
- If shared parenting increases the opportunity for the child to learn each parent’s first language;
- The opportunity for increased time with half-siblings in shared parenting, particularly when the children are mid-to-late teen ages;
- The opportunity for meaningful contact with other members of the child’s family, such as step-siblings;
- If shared parenting allows a child to continue to attend the school where their friends are;
- If there is nothing to suggest that a parent is unfit, harmful, or neglectful;
- A parent’s unique ability to assist a child with disabilities;
- Both parents having an appropriate residence for the child;
- Maintaining a close relationship with grandparents who have been involved in childcare;
- The ability of the parents to easily adapt to shared parenting;
- If shared parenting allows the primary parent some relief from the child in order to pursue career or educational opportunities;
- A manageable driving time between both parents’ residences;
- Where the only objections to shared parenting are that the change would be difficult or that the other parent can be difficult, positive factors about shared parenting will outweigh these issues;
- If shared parenting can mitigate or neutralize bickering, hostility, and communication difficulty;
- If the historical primary parent has attempted to thwart the other parent’s involvement and time with the child;
- A parent and their new partner providing a loving home for the child;
- The parent who has historically not been the primary caregiver having a flexible work schedule or is able to work from home;
- If both parents rely on third party childcare during their parenting time; and
- On an interim basis, where the parents appeared to have done shared parenting following separation.
The Court also outlined an extensive set of circumstances which argue against shared parenting. They include:
- The parents are unable to put the child’s interests ahead of their own to such a degree that regular cooperation and coordination is impossible;
- The parents are in substantial conflict and lack a genuine willingness to work together to ensure the success of shared parenting;
- Where the separation of the child from their historical primary caregiver, particularly at a young age, may be emotionally and developmentally disruptive for the child;
- A parent’s frequent violence and angry outbursts against the child;
- A child feeling the need to disparage a parent;
- A child at risk of serious psychological problems;
- One parent’s instability in a new relationship, or instability of their residence, coupled with a lack of information about childcare during their parenting time;
- A parent proposing that each enroll the child in separate activities, to be pursued only with the enrolling parent;
- A heavier reliance on third-party caregivers by the historical non-primary parent, whereas the historical primary parent can be flexible or work from home;
- Absence of a clear residential custody and school plan for the child in a shared parenting schedule;
- The child has expressed opposition to shared parenting and is of an age and maturity level where such wishes should be considered;
- One parent’s relocation no longer makes it possible to share parenting time;
- Where travel between the homes makes shared parenting impractical, particularly once the child is starting in extracurricular activities;
- The historical non-primary parent has not provided stability and predictability for the child, including repeated failures to exercise access with the child;
- If there is a significant disagreement on the evidence then shared parenting may not be ordered on an interim basis before a trial.
- If one parent who previously had shared parenting was then absent from the child’s life for a significant period of time;
- If the historical non-primary parent’s evidence is lacking on the strength or importance of the relationship with the child and any special needs accommodations for the child, or school attendance commitments;
- The historical non-primary parent lacks a residence that can accommodate the children;
- Serious drug or alcohol dependency of a parent;
- A parent’s failure to demonstrate a healthy and safe home environment; and
- The impact of a child being separated from siblings, a child witnessing domestic violence, or a child who is struggling in school.
Essential to keep in mind is that the aforementioned lists are not exhaustive – there are other factors that may come into play and each case depends on its unique circumstances. Moreover, even if shared parenting is found to be in a child’s best interests, it may not happen immediately and the Court may devise a transition plan to gradually reach a shared arrangement.
Parenting and custody disputes are crucial and complex areas of family law, and decisions made shortly after separation can have impacts on a parenting schedule for years to come. If you are going through a separation or divorce, talk to the Legal Navigator at Coach My Case to get the full for and against of shared parenting.