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In Lieu of Court to Settle Parenting Disputes

There are two powerful concepts that come into play when one parent wants to make changes to a parenting arrangement when the other parent objects and the parents use the Courts to resolve their dispute.

The first concept is known as “the status quo”. Briefly translated, it means, if it isn’t broke, don’t fix it.

Even though you may think something is broken and needs fixing, the issue then becomes a concern that change may make the matter worse, not better. As a result more consideration may be given to retaining the status quo – continuing to do as has been done, than to change. These are strong forces for a judge to consider if tasked with the job of determining changes to a pre-existing parenting structure. The longer the pre-existing structure has been in place the greater the resistance there will be to making changes. That is the nature of the “status quo” argument.

As per the second concept, typically courts will only entertain a change to the status quo, the arrangement currently in place, if there has been a “material change in circumstance” or if the current arrangement is so egregious as to bring obvious and almost immediate if not immediate harm to a child.

A material change in circumstance means something has been altered to quite affect either the parenting arrangement or the wellbeing of the child within the parenting arrangement. For example if a parent seeks to relocate to a distance that would make the current arrangement unworkable or if a parent becomes incapacitated be it for reason of health, drug or alcohol issues or other misfortune or if it is argued that a parent is undermining the relationship between the child and the other parent, these could be considered material changes in circumstances. In other words something has to have occurred or about to occur that renders the current parenting arrangement unsuitable.

These two forces, status quo and material change in circumstance, provide formidable hurdles for a parent to cross when seeking to change a pre-existing parenting arrangement – whether or not the pre-existing parenting arrangement has ever been agreed to or has simply just fallen into place as a matter of fact.

To the trier of facts, the judge, before even considering the impact of changing a parenting arrangement, will likely first seek to determine if there has been a change of circumstance worthy of altering the current parenting arrangement, particularly if it appears that the child is developing at all reasonably or at least not terribly.

While judges do rely upon other prior cases to inform their decisions and to determine thresholds for what may be considered a worthy material change in circumstance to then next consider altering the status quo, there is quite a degree of variability between judges and how each will interpret prior cases in addition to the information put before them in the case at hand. However, it should be known that typically the threshold is high for both considering a material change in circumstance as well as considering a change to the status quo.

Parents never having been to trial before will have their own pre-conceived notion as to what constitutes a material change in circumstance and the relevance of the status quo. However, whatever their preconceived notion, there is a substantial risk to that parent that their perception will be either an underestimate or overestimate of the trial judge’s perspective. This means leaving the matter for a judge to decide will likely leave one parent significantly disappointed with the outcome.

In going to trial, you may be seated with a judge whose threshold for determining these issues is far lower than anticipated or alternately, far higher than anticipated.

If for a moment you think that exaggerating your claims with regard to the issues will move the judge towards one or other side of the threshold then think again. Exaggerated claims are often self-evident and undermine the credibility of the parent making the exaggerated claims and this works against that parent.

Parents are cautioned and advised to consider the courts as a high risk alternative and alternative of last choice when seeking to resolve parenting disputes.

In lieu of going to court and in order to retain some semblance of control of the outcome, parents are advised to exhaust these dispute resolution strategies ahead of taking their matter to Court:

  • Joint counseling and education on the issue of dispute;

  • Mediation;

  • Collaborative Family Law;

  • Lawyer assisted negotiation with settlement minded lawyers;

  • Parenting Coordination;

  • Arbitration.

Court will always remain a crap-shoot. The only known outcome of court is that one parent will likely be quite dissatisfied with the outcome. By the way, dissatisfaction leads to resentment and resentment leads to retribution which of course only drives conflict and thus the likelihood of having to return to court one fine day.

Find a solution independent of the court process, entered into voluntarily and where you have a greater likelihood of both parents agreeing to the outcome and then the likelihood of the outcome remaining in place and conflict abating is better. Even if you have to plug your nose in order to accept the outcome that will likely be better than losing control and being fully unsatisfied with the outcome or perhaps worse still, winning and then being subject to the loser’s discontent.

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Gary Direnfeld, MSW, RSW
(905) 628-4847  

gary@yoursocialworker.com

www.yoursocialworker.com 
 
Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

 

Call Gary for your next conference and for expert opinion on family matters. Services include counselling, mediation, assessment, assessment critiques and workshops.

 

 

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20 Suter Crescent, Dundas, ON, Canada L9H 6R5 Tel: (905) 628-4847 Email: gary@yoursocialworker.com