Child Custody

If you are currently undergoing divorce proceedings, a paternity suit or any other child custody hearings, it is important that you understand the different types of child custody arrangements and how they will affect the interests of your child.

Types of Custody Arrangements

Child custody determines which parent has control over and responsibility for the care and well-being of a child. The custodial parent not only lives with the child, but also has the right to make decisions regarding the child's religion, education and medical treatment. There are four main forms of child custody:

Sole child custody
Joint child custody
Shared child custody
Split child custody

Sole child custody means that only one parent is awarded custody of the child and, except during permitted visitation, the child resides with the custodial parent.

Joint child custody means that more than one person, typically both of the child's parents, share custody of the child, although such custody is not necessarily equal.

Shared child custody occurs where there is joint custody and each parent has equal custody of the child, defined as having the child reside with each parent for at least 40% of the time.

Split child custody is where there are multiple children and each parent has custody of at least one child.

The “Best Interests of the Child” Standard

According to the Divorce Act, the primary consideration in determining custody and access is the “best interests of the child.” Although parents may feel that they have a right to their children, it is the child's rights, rather than the parents', that are determinative in child custody and child visitation decisions. This is a factor that should be kept in mind at all times during custody proceedings.

Joint Child Custody Arrangements

Joint custody arrangements are often the most beneficial if the parents have a relatively harmonious relationship, because it allows both parents to maintain responsibility for their child. The parent who feels that joint custody is not in the child's best interest has the burden of proving why this is true. Because joint custody often requires cooperation between the two parties, courts are hesitant to award such custody in situations where the parents do not get along well, or where the arrangement may otherwise not be in the best interest of the child.

Child Visitation Rights

If the parents have joint custody, each parent is entitled to full parental rights, regardless of which parent resides with the child for a larger percentage of the time. For instance, both parents have the right to meet with the child's teachers and doctors, access the child's medical and school records, and make important decisions regarding medical procedures, religious upbringing and education.

In instances where there is sole custody, the non-custodial parent is awarded access to the child through pre-determined child visitation rights. Child visitation includes, not only the right to visit with the child at set intervals (such as weekly, biweekly, or semimonthly), but also the right to access the child's medical, school, and other records. The primary difference between a custodial parent with joint custody and a non-custodial parent without custody is that the custodial parent is entitled to make final decisions regarding the child, whereas the non-custodial parent may only access records regarding these decisions, without making the ultimate decision itself. The parent with custody has a duty to provide such information to the non-custodial parent on a regular basis.

Child visitation rights are considered fundamental and access to a child will only be denied in extreme cases, such as instances where there has been substantial child abuse. Even if a parent is denied child visitation rights, he must continue paying child support. Additionally, if a non-custodial parent fails to make a child support payment, the other parent cannot simply deny visitation rights until payment is made.

Types of Child Visitation Arrangements

Reasonable Access

If the parents are on agreeable terms, access arrangements can be left flexible. The child custody agreement, or court order, will simply state that the non-custodial parent will have “reasonable access” to the child. This allows the parents to create a flexible agreement that is convenient, and that can be altered if any of the surrounding circumstances change.

Fixed Access

Fixed access simply states how child visitation will be carried out. The child custody agreement, or court order, will state the frequency of such visits, where they will take place, and how long they will last. While this is less flexible than the reasonable access arrangement described above, it creates clear guidelines that must be followed, particularly by parents who are unable to get along.

Supervised Access

If there are concerns over how a non-custodial parent may behave around a child, a judge may order supervised access. In such cases, the non-custodial parent has visitation rights, but another adult must be present when that parent and the child are together. The other adult may be a relative, friend, or worker at a Children's Aid center. This form of visitation is often ordered where there has been a history of drug or alcohol use, child abuse or kidnapping attempts.

Awarding Custody and/or Visitation Rights to Other Family Members

Child custody disputes typically involve the biological or adoptive parents of a child. However, in some instances, another family member, such as a grandparent, step-parent, aunt, or uncle, may be granted custody. Under Ontario law, any person may apply for custody. However, it is more difficult for a non-parent to obtain custody of a child, and such custody will only be granted in extreme circumstances, such as where the biological parents are not fit to care for the child. As in all cases, the best interests of the child will be the focus of the custody proceedings.

In addition to rare situations where non-parents are awarded custody of a child, other family members, commonly grandparents, may be granted visitation rights, particularly if they are related to a non-custodial parent who has been granted limited or no access to the child.

Family Law Information