Should I let my children see my spouse when I am concerned about their safety?
If you have a protection order
If you have a protection order — including a peace bond or a family law protection order — that says your spouse is not to contact the children, then it must be followed. This is true even if you have another family law order that gives your spouse parenting time or contact.
For example, if you have a parenting order that gives your spouse parenting time, and later a protection order is made saying your spouse is not to contact the children, the protection order must be followed.
The Family Law Act gives priority to protection orders where there is a conflict with a family law order.
If you do not have a protection order
When any couple with a child (or children) separates, no matter what the reason, they need to make some very important decisions, such as how they will care for their children, and how each parent will be involved in their children’s lives. But if there are concerns about family violence, this can be even more complicated.
The Family Law Act says only the best interests of the child must be considered when making any decisions about the care of children after separation. This includes arrangements about guardianship, parenting time, parental responsibilities and contact with a child.
When considering what arrangements are in your child’s best interests, you and the court must consider what will best protect your child’s physical, psychological, and emotional safety, security, and well-being. The “best interests of the child” is a legal test, and requires consideration of a number of factors that includes the impact of any family violence and criminal, civil or child protection issues.
If you are afraid for your child’s safety and are concerned about care of and time with your children, you can seek a parenting arrangement that limits or defines your spouse’s parental responsibilities and parenting time.
As well, conditions can be placed on the parent’s time with the child. For example, visits are supervised or the parent cannot drink alcohol for a period of time before, or during, their time with the child. In some situations it may not be appropriate for a parent to remain a guardian after separation, and an agreement or order can say that the parent will no longer be a guardian.
If a court needs more information about what type of arrangement is best, it may order a parenting assessment. Parenting assessments often include interviews with both parents and the child, and sometimes other people to develop a report about your family’s situation and each parent’s capacity to care for the child. Parenting assessments can be done through Family Justice Centres, or by a private practitioner.