Custody – What are my options?
After separating, one of the most commonly asked questions is “What about the children?”. Custody is broken down into two main components – 1. Where will the child live; and 2. Who will be responsible for making decisions regarding the child.
Contrary to popular belief, there are actually five different types of custody. There is sole custody, joint custody, shared custody, parallel parenting, or nesting orders.
In some cases in the past, the Judge has refused to make an order for custody as it denotes winners and losers. In these cases, the Judge typically omits the word “custody” when making the order, and instead, makes an Order setting out where the child will live and each party’s decision-making powers.
Sole custody is where one parent is entrusted with the sole decision-making power regarding the children.
There are many factors that can affect a Judge’s decision whether or not to rule in favour of sole custody. Examples include blameworthy conduct, impaired parenting ability, availability and the parents’ ability to cooperate and communicate.
It should be noted that sole custody doesn’t always mean sole decision-making power. Safe guards, or supplementary orders, can be incorporated to share the decision making. This is often called a “parallel parenting plan”. This will be discussed further below.
Generally speaking, joint custody is where both parents have equal decision-making powers and equal time with the child. With that being said, it is also common for the court to make an order relating directly to decision-making and a separate order setting out the child’s residence schedule, typically set out in terms of an access schedule. Section 16(10) of the Divorce Act states that children should have as much time with both parents. This concept is given significant weight in considering joint custody.
There are many factors that can affect a Judge’s decision to order joint custody. For example, joint custody is more likely to be ordered if there is evidence that the parties are able to effectively co-parent and communicate about the children.
In the past the court has found that, in an effort to reduce the possibility of an order for joint custody, parties have made allegations of conflict, or intentionally created conflict, to impact the Judge’s decision. Said conflict, or alleged conflict, would negatively reflect on the parties’ ability to communicate, thus reducing the possibility of an order for joint custody. There is extensive case law to show that allegations of conflict or intentional conflict are not enough to tilt the scales against an order for joint custody.
Much like joint custody, shared custody involves an order for joint decision-making powers. The difference is that an order for shared custody typically results in one parent being granted primary residence of the child.
With this arrangement, it is critical that the parents are able to effectively cooperate and communicate about the children. Given the fact that the child will primarily live with one parent, this type of custody is challenging, especially if the child is of age to attend school. That is where the need for exceptional communication comes in. The parents must be able to cooperate well enough to ensure that the child’s best interests are put first, despite the child primarily living with one parent.
Although not technically a “custody” order, parallel parenting plans are becoming more common. A parallel parenting plan entails each parent having specified time with the child and specifically sets out their responsibilities during that time.
Parallel parenting plans are common where the parents aren’t able to co-parent well enough for a joint custody order, but nevertheless both want to be involved in the decision making. Typically, a parallel parenting plan sets out which parent has authority to what type of decisions. For example, Parent A may have decision making power over issues relating to medical and dental whereas Parent B has decision making power over issues relating to education and religion.
The final type of custody is very rare and is only awarded in extraordinary circumstances. With a nesting order, instead of the children shuffling between the parents’ homes, the parents take turns rotating through the child’s home. This type of Order is least disruptive to the child.
From a financial perspective, this option is not feasible as three homes are required – one for Parent A, one for Parent B and one for the child.
Very few custody cases involve significant legal issues. For the most part, they are usually fact based and it is up to the Court to determine which parent’s proposed plan would be in the child’s best interests. Sounds simple but it is all too common for the child’s best interests to be lost amidst the custody battle.
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