Obtaining evidence in high conflict parenting disputes, Part 1: Lawyers for children.

Author:Dargatz, Sarah

In most disputes over parenting time, parents come to reasonable decisions about what is in their child's best interests. However, a small percentage of disputes are "high conflict". In high conflict cases, the parents have great difficulty communicating, make decisions together, and treating each other with respect. Each parent will advocate for very different schedules. High conflict cases may be driven by only one unreasonable parent or by both parents (and sometimes by very involved step-parents or extended family). Parents may be dealing with mental health issues, personality disorders, family violence, or simply high emotions that cloud their judgment. Whatever the reason, the court must decide what is ultimately in the child's best interests. When the parents are advocating for such different proposals, the court generally requires evidence from neutral third parties and from experts.

Often, parents in high conflict cases claim the child has strong opinions about the parenting schedule. Or, they may claim that the other parents' actions are negatively affecting the child. Usually, the other parent reports the opposite. In these cases, the court does not know whom to believe, as both parents may be self-motivated. Also, it is common for a child to tell their parents what they think they want to hear, which can result in parents being told very different things by their child. For these reasons, information from a parent about what a child thinks or says can be unreliable.

It is very rare in Alberta for a child to give evidence directly to the court as a witness in a family law matter. This can be very stressful for a child. Children usually love both their parents, despite all their faults, and it's unfair to make them feel as if they have to choose between them. This can also open the door to manipulation, either by a parent or by a child, to get what they want. Further, depending on their age and maturity level, children are often not able to determine what is in their own best interests. Just as we don't let children decide if they should go to school or eat their vegetables, we don't let children decide with whom they live, unless their reasons are well-founded.

Sometimes, the court can gain insight from non-experts such as teachers, doctors, and counsellors who can provide objective information about grades, attendance, and health. However, these professionals are not experts that can give an opinion about what parenting schedule...

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