It’s the biggest question in most divorces: Who Gets Child Custody?
Child custody is the legal right of an individual to make important decisions relating to the care of a child under the age of 18. It usually concerns their place of residence, religion, schooling arrangements and so forth.
Most parents are able to work together to draw up a detailed custody and parenting plan. However, some find the process a major challenge and need to enlist the help of a third party.
Where can parents receive help with drawing up a custody and parenting plan?
Family lawyers can help parents to reach an agreement without going to court. However, as one lawyer cannot represent both parents, each parent must appoint their own lawyer.
Alternatively, parents can ask mediators to help them to find acceptable resolutions. However, mediators cannot provide legal advice and they are unable to make decisions on behalf of parents.
When parents simply cannot agree, they must either use an arbitrator or go to court and ask a judge to decide who gets child custody.
How does an arbitrator decide who gets child custody?
Arbitration is a formal, structured process in which an arbitrator serves as a judge. The arbitrator listens to the case and makes legally binding decisions on behalf of the parents.
How does a judge determine who gets child custody?
When a judge makes decisions about child custody and access, he or she will not consider the past behaviour of either of the parents. However, they will take into account:
• The child’s emotional ties
• The child’s wishes
• The stability of the home that each parent is offering to provide
• The ability of each parent to care for and raise the child
• The criminal background of each parent. This includes a parent having a history of violent and/or abusive behavior
What are the different types of custody?
There are four main types of custody:
If a judge awards parents joint custody, the parents must agree on the major decisions that affect their children. If they disagree, they must work together to devise suitable solutions.
Joint custody only works effectively when parents are able to cooperate with each other. Sometimes, parents with joint custody are able to divide their decision-making. For example, one parent may agree to make health care decisions. While the other may agree to make educational decisions. Residency and access arrangements may vary.
If the court grants parents joint custody and parents spend at least 40% of their time with their children, this is called shared custody.
If a judge awards one parent custody of some of their children, and the other parent custody of their remaining children, this arrangement is called split custody.
If the court grants one parent sole custody, the custodial parent will be able to make decisions, even if the other (non-custodial) parent disagrees.
The judge will usually provide the non-custodial parent with access to their children. Access may be liberal and generous or specific and fixed, depending on the parents’ ability to cooperate with each other. In extreme cases, a judge may refuse a parent access to their children. This may happen when a parent has a history of child neglect or abuse.
Who will the child reside with?
Some children reside mainly with one parent, while others divide their time between both parents.
According to Statistics Canada’s Social Survey 2011, 15% of children primarily reside with their father while 70% primarily reside with their mother. Only 9% divide their time equally between their parents’ homes.
If you have any questions for our Newmarket divorce lawyers, contact us, we will gladly field any inquiries you might have.