My Ex and I Don’t Agree on Parenting Decisions, Do We Have to Let a Judge Make the Decision?

When separated parents cannot make decisions for their children, or cannot agree on who should have custody, they may have to go to court. Judges are almost never trained in social work or child psychology. Some of them did not even practice as family lawyers. There are ways to get those child-focused professionals involved to help decide parenting issues. Check out this episode of the Ontario Family Law Podcast for an explanation and some ideas. The following is an excerpt from my easy-to-understand book or $9.99 eBook on Ontario Family Law: Guide to the Basics of Ontario Family Law.

Getting Professional Help Making Parenting Decisions

After separation, parents who are in conflict frequently employ professionals to assist them with parenting issues. Alternatively, a court may order assistance from professionals. In separation and divorce matters, these professionals are most commonly involved as either parenting coordinators or custody/access assessors. The same professionals can also act as mediators to help parents develop a parenting plan for their children.

that a parenting coordinator will have the powers of an arbitrator to make a decision when the parents cannot agree. Since the process involves a child-centred mental health professional, parenting coordination is a popular way to address minor parenting issues between parents who are always in conflict. Although parenting coordinators are privately retained, it is usually cheaper to pay one parenting coordinator than two lawyers to resolve issues such as when and where access exchanges will take place, how to get information from a child’s school, or which parent will attend a school function. The downside of parenting coordination is that it can provide easy access to a forum to keep fighting if one or both parents want to continue the conflict. However, if both parents want to find ways to end their conflict, parenting coordinators may be able to teach them how.

A custody/access assessment, which is also called a “Section 30 Assessment”,[2] is very different from parenting coordination. Judges often feel that they do not have the proper training to determine what is in a child’s best interests because a judge’s training is in the law and not in child welfare.[3] So, judges often like to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like. There are two methods to obtain custody/access assessment. The first is that the parties can agree to have a custody/access assessment. The second method to obtain a custody access assessment is that a judge can order one if he or she is of the opinion that there are clinical issues that are outside the scope of the judge’s legal training.[4] 

Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work. They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart. The custody/access assessor usually meets with the children as well. Often the assessor will speak to other professionals and other people who are important in the children’s lives.

At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent. The assessor then communicates his or her opinion to the parties. If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial. The Trial Judge can accept or reject the assessor’s opinion.[5] However, the opinion of a custody/access assessor is usually very persuasive to a judge.

The Office of the Children’s Lawyer can be involved in custody/access disputes before the court. A court can ask the Office of the Children’s Lawyer to become involved in assisting a child. The Office of the Children’s Lawyer still has the discretion as to whether or not it will become involved in custody/access matters. In addition, the Office also decides whether it will appoint a lawyer for the child,[6] or appoint a social worker to conduct a “Clinical Investigation,”[7] which is very similar to a custody/access assessment, or whether the agency will provide both. The Office of the Children’s Lawyer, which exists only in Ontario, takes the position that it is not necessarily its job to advocate for a child’s views and preferences, but rather to advocate for that child’s best interest. The child’s views and opinions are only one consideration that the lawyer representing them through the Office of the Children’s Lawyer will consider. The agency will consider all the circumstances surrounding the child and tell the court what it believes to be in the child’s best interests. The position of the Office of the Children’s Lawyer is very influential on a judge because judges often view that Office as being impartial.

There may be many other issues besides custody and access between separating partners or spouses other than the ones discussed above. This is why it is important for you to consult a Family Law lawyer regarding your specific custody and access concerns.