My New Partner Was Charged with A DUI, Will That Affect My Parenting (Custody) Case?
Parenting (formerly child custody) cases in Family Court are supposed to be about what is best for the children and not about the behaviour or concerns of adults, unless it impacts the children. But, the time after separation is a particularly difficult time in which it can seem a former spouse makes all kinds of terrible choices – especially around choosing a new partner. Handing over young children to an apparently untrustworthy former partner can be one of the hardest things for a parent to do. So, what will a Family Court Judge do if a parent partners with someone with a criminal record for Driving Under the Influence of otherwise?
Without a court order authorizing it, there are very few circumstances when a parent can cut-off another parent from spending time with the kids. Whether someone’s behaviour will impact what a judge would do is essentially based on whether it would impact the kids.
Section 16 of the Divorce Act (which applies to married parents) and section 24 of the Children’s Law Reform Act (which applies to common law parents) both say that the only consideration that the Courts can take into account when making a parenting order is what is will be in the child’s best interest. The feelings, emotions and “wants” of the parents are not a consideration. And, exactly on point, section 16(5) of the Divorce Act and section 24(5) of the Children’s Law Reform Act both say that the Court shall not take into consideration anyone’s past behaviour unless that conduct impacts their ability to parent the children. So, that means that if a parent’s new partner, or even a parent, did something stupid, a judge will not even want to hear about it, unless it impacted or will impact the children.
So, a past criminal conviction, for anything, will not automatically impact a custody case.
However, both section 16(2) of the Divorce Act and section 24(2) of the Children’s Law Reform Act state that the primary consideration in determining what is in a child’s best interests is “the child’s physical, emotional and psychological safety, security and well-being.” This means that if a parent has done anything in the past that has endangered the child’s safety or has done anything that shows that he or she is likely to do something that would endanger the child, that is something that the judge will definitely consider.
Judges will not consider one parent’s suspicions about the other parent unless those suspicions are backed up by fact. In addition, judges cannot consider any alleged fact unless it is backed up with evidence.
To put that into some context, a DUI conviction would not impact a parenting case unless the children were in the car while the parent was impaired, or the parent had shown a willingness to drive the children while impaired, or there is some additional evidence that the parent has a drinking problem that impairs his or her parenting ability. A conviction for DUI when the parent was not with the children, and without some additional evidence that the parent is impaired by drugs or alcohol while parenting, will not be a basis to restrict a parent’s parenting time or responsibilities (unless, of course, that parent ends up in jail for a period of time.)
The same is even more true when the person with the conviction is not a parent, but a new partner of a parent. That new partner may never have been actually parenting the children and may have no responsibilities toward the children. In that case, the DUI conviction would not threaten the children’s safety.
If the concern is that the new partner would get intoxicated and become abusive to the children, the parent raising those concerns will need some evidence that is a real concern. Suspicions that a parent or their parent has a substance abuse problem or an abuse problem are not enough to convince a judge in a parenting case.
On the contrary, a parent who tries to limit a child’s relationship with the other parent over unproven safety concerns risks losing parenting time or parenting responsibilities. This is because both sections 16(3)(c) and (i) of the Divorce Act and sections 24(3)(c) and (i) of the Children’s Law Reform Act make the ability of one parent to support and cooperate with other parent important considerations in deciding what parenting time and parenting responsibilities each parent should have. A parent who is unjustifiably unsupportive and uncooperative with the other parent may lose all parenting time and responsibilities.
Parenting cases that have concerns about the safety and well-being of children are some of the most difficult cases in Family Law as they are always high-conflict cases and judges are skeptical of parents who want to place restrictions on the other parent, but very concerned that their decision not result in harm to a child. For these cases, it is always critical to at least speak to a top Family Lawyer to make sure that the Court, or arbitrator, makes the Order that is in each child’s best interest.
There must be some evidence that a person’s past behaviour will continue to have a negative impact on a child for that past behaviour, even if it was criminal behaviour, before it will impact parenting decisions.
You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.
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