Demystifying Child Custody
As parents we live for our children, often setting aside personal needs and wants in order to provide them with an optimal upbringing. Ask a parent what their deepest desire for their children is and more often than not their answer will be simply for their children to have a healthy, happy life and an understanding that they are loved. In cases of marital or relationship breakdown, parents are inevitably faced with one of the most difficult experiences that parenthood may bring: navigating division of custodial rights and parenting time in planning for their children’s future. In order for parents to knowledgeably make these critical decisions for their children’s future, it is helpful to first understand the concepts behind them.
The Meaning of “Child Custody”
One of the greatest misconceptions when it comes to discussing child custody is its actual meaning. Oftentimes, the term “custody” is mistakenly used in reference to the physical residence of children.
Within legal terminology, the word custody means decision making authority.
Determining who is to have custody of children means determining who will have the authority to make significant life decisions as to their health, education and religious upbringing. Who is granted custody of children is unrelated to how much time children may spend visiting with or residing at either parent’s place of residence.
Application of the Terms “Custody” and “Access”
Matters of child custody in Ontario are determined under the Children’s Law Reform Act,1Children’s Law Reform Act, RSO 1990, c C.12, <http://canlii.ca/t/52vf6> as well as the Divorce Act.2Divorce Act, RSC 1985, c 3 (2nd Supp), <http://canlii.ca/t/52f27>
While married or residing with one another, both parents have custody of the children; they must act in accordance with the rights and responsibilities of a parent, in the best interests of their children.
Once a couple has separated and children are in the physical care of one of the parents, in the interim until a separation agreement or court order is set into place, custody rights of the non-residential parent are temporarily suspended. In the meantime, the right for the non-residential parent to spend time with the child will generally continue.
Access rights means the entitlement to spend time with one’s children, and to have the children come for visits with that parent, as well as the parent’s right to request information regarding the education, health, and the welfare of the children.
Types of Custody Arrangements
Sole Custody – Sole custody means only one parent has the right to make significant decisions regarding the children’s upbringing. The children’s primary residence will be with the custodial parent.
Joint Custody – Commonly granted in such cases where parents are able to communicate and make decisions with one another. Residential arrangements will vary from one situation to the next.
It is possible to have certain custodial rights granted to one parent (for example, religion and education) and other rights to the other parent (in the same example, medical decisions and enrollment in extracurricular activities). This is generally referred to as “parallel custody”.
The Legal Test in Determining Who will have Custody of Children
If the issue of custody cannot be resolved without court assistance, any court application for custody will be determined strictly based on “the best interests of the child.”3Children’s Law Reform Act, RSO 1990, c C.12, s 24 <http://canlii.ca/t/52vf6#sec24> Determination of a child’s best interests is made in consideration of the following factors, specific to the child or children in question:
- The relationship the child has with each parent and other parties assisting with the child’s upbringing
- The child’s opinions and views, if it is possible to determine them
- Stability of the child’s home environment, and the length of time for which these arrangements have been in place
- Capacity and interest of the person applying for custody to provide education, guidance, and a suitable upbringing for the child in accordance with the child’s needs
- Propositions offered by each person applying for custody in relation to the child’s care and upbringing
- The permanence and stability of the family unit with which the child is proposed to live
- Ability to act as a suitable parent
- Blood relation with the child
- Any past or recurring behaviours of a parent as they regard the safety of the children
Some further considerations have been listed by the Ontario Court of Appeal regarding granting joint custody, to include:
- There must be evidence of historical communication between the parents and appropriate communication between them;
- Joint custody cannot be ordered in the hope that it will improve communication;
- Just because both parents are fit does not mean that joint custody should be ordered;
- The fact that one parent professes an inability to communicate does not preclude an order for joint custody;
- No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis; and
- The younger the child, the more important communication is.
The Best Custodial Arrangement for Your Family
So at the end of the day what is best for your family? The one that works for your children and your coparenting relationship. In many cases parents are able to work out custodial arrangements in mediation or through another method of alternative dispute resolution. At times however, where parents cannot agree on what arrangements would be best for the children, other methods for resolving the dispute may be considered. As always, it is advisable to seek independent legal advice in order to understand your legal rights and obligations.
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