CHILDREN’S RIGHTS AND CHILD CUSTODY
Spouses, whether married or not, who decide to end their relationship after having one or more children, inevitably will want to establish the child custody and support payments.
In all litigation regarding child custody rights, the child’s interests always come first in the assessment by the Courts. Thus, the Court will examine what is in the child’s best interests in the light of the facts presented, without relying on the parents’ preferences. When child custody rights are in question, the Court asks the parents to participate in a family mediation session to try to resolve the conflict peacefully. In case of a disagreement, the Court will decide on the application and will evaluate the respective parental capacities of each parent, based on several factors determined by case law, before ruling on the question.
The Judge will have to ensure that the parent who obtains custody of the child facilitates the child’s contact with the other parent, as provided by law. The relationship between the grandparents and the grandchildren must also be favoured. The Judge may decide to re-examine the situation later. The Judge may also take the child’s request into account, if he or she considers it reasonable.
If you want to request custody or access rights, consult one of our lawyers to help you institute legal proceedings. We know how difficult this process might be for you and your family and we are committed to assist you during the entire legal proceedings.
The child’s wishes
Children have the right to be heard to defend their interests, directly or through a lawyer. When the child is mature enough to express what he wants, it will then be possible to appoint a lawyer on an ad hoc basis. The older the child who expresses his wishes, the more seriously the Court will consider this in its assessment.
The attorney for the child
A children’s attorney may be appointed by order of the judge or at the request of one or both of the parties, if this representation is in the child’s best interest. Depending on the child’s age, the attorney will play a different role:
– If the child is mature enough to understand the situation and express a choice, he can then mandate his lawyer directly. The lawyer will have to advise his young client and represent him in Court. It is up to the lawyer to decide whether or not the child has the capacity to mandate him.
– If the attorney considers that the child does not have the required maturity, he must then ensure that the decisions are made in the child’s best interest and that the child’s rights are respected.
It is important to know that the children’s attorney is bound by professional secrecy. He may not disclose what his client tells him to the other parties.
When the conduct of one of the parents has the effect of turning the children against the other parent, this diminishes parental capacity to be awarded custody. This highly reprehensible conduct may even justify a change of custody. Since separation is a difficult situation for all family members, the parents have the obligation to spare their children from parental hostilities by not using them as go-betweens.
If the two parties agree, the judge will issue a psychosocial evaluation order to ensure that this testimony is expedient and in the child’s best interest. A party may also request this, and the judge will order the evaluation if he is convinced that it is necessary.
The judge then will determine the expert’s mandate and will refer the parties to the Psychosocial Evaluation Service of the Superior Court. Once the report is completed, the expert will send it to the Chief Justice, who will forward it to the parties. The report is an integral part of the proof in the file. However, the judge is not bound by the evaluation’s recommendations. It is also possible to request a private evaluation which the parties would have to pay themselves.
In Quebec, child support is mandatory and of public order. The custodial parent has the right to receive child support for the benefit of a dependent child. The calculation is based according to the child support guidelines established by law, which takes into account:
What we can do for you?
Demand for child support
A request for child support can take different forms. It could be requested as an accessory during the proceedings of divorce, separation, child custody or it can take the form of a separate proceeding for child support exclusively. We will help you determine the most appropriate proceedings for your family situation.
Modification of child support
Once the child support is established, unforeseeable circumstances can justify the modification of the child support payments ordered by the court. To modify the child support, we need to prove to the court that significant change of circumstances since the last judgment was rendered, justifies the modification of the support payments. Consult your lawyer to determine if your change of situation would permit the modification of the child support.
Cancellation of child support
As with the modification of child support, a request to cancel the child support needs to be justified. We will inform you of about the circumstances that would allow you to cancel or even suspend the child support, such as lost of employment, financial autonomy of the child, etc.
Joint demand/ modification / cancellation of child support
Whether you want to request child support, modify it or cancel it, you can always proceed by a joint application before the court if the couple agrees and is ready to jointly sign the documents. We can help you estimate of child support payments required by law according to the guidelines established. We possess an up-to-date software specially conceived to calculate the child support payments according to law. We can draft the joint application for you and get a judge to give a judgment on your signed agreement. We offer all-inclusive packages with a fix rate.
We will be there with you during the entire process of your child custody proceedings. We will put all our efforts and knowledge to resolve your case as quickly and as efficiently as possible to minimize the emotional and financial impact of court proceedings on the entire family.