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Custody Issues

01.

Understanding Child Custody

Many think “Custody” means where the children reside, but it actually means decision making ability. If you have custody of your children, then you are legally entitled to make all the important decisions regarding your children’s lives. These are decisions about education, religion, medical treatment, etc. For example, while parents may have “joint custody” (joint decision making ability) the children may actually reside primarily with one parent for most of the time and a child’s residence is determinative of who will be the Payer or Recipient, of child support.

02.

Types of Custody in Canada

Sole Custody – This is when one parent has custody of the children. In this case, the child always resides permanently with the parent having sole custody and the other parent may have access visits.
Joint Custody – This is where both parents have custody. This is also known as joint legal custody. Courts will normally only awards this type of custody to parents who are able to cooperate on parenting matters. While parents may have joint custody, the residency/access arrangements for the children may vary widely.
Shared Custody – This is when both parents have joint custody of the children, and both parents spend at least 40% of the time with their children. This is also known as joint physical custody.
Split Custody – This is when one parent has custody of some of the children, and the other parent has custody of the remaining children. Courts try to never split up up younger children from their siblings. However, older siblings often choose to live with different parents.

03.

Addressing Custody Disagreements Without Court

Going to trial over custody can be expensive and stressful for both you and your children. Below are some options that parents have to help them reach agreements on parenting arrangements and child custody, without having to go to court.
Family Mediator– A mediator is generally a person with a legal or social work background. They will have special training in helping people to resolve disputes. A mediator works with both parents to help you to discuss and decide on the best arrangements for your children.
Lawyers -You and your spouse can retain separate lawyers to help you understand your legal rights and obligations and negotiate an out of court parenting agreement. Another option is to participate in the Collaborative Law process. In this approach a team of Collaborative Family Lawyers which may include Divorce Coaches, Child Specialists and Financial Specialists guide you through the process.
Therapist – Parents can meet with family therapists, counselors, child psychologists, social workers or any other professionals, who specialize in the effects of separation and divorce on children. The parents can use the knowledge and guidance of these professionals to help them negotiate an agreement.
Parent-Education Sessions– In Canada many courts will host parent-education sessions. These sessions will present different options for settling issues about separation and divorce and also discuss the impact it has on children.

04.

Resolving Custody Disagreements in Court

If an amicable agreement is not possible then deciding who will get custody and what type it will be, gets determined by the courts. When determining child custody in Canada a judge will consider items such as:

1. First and foremost the best interest of the children.
2. The parent-child relationship and bonding.
3. Parenting abilities of each individual.
4. Each parent’s mental, physical and emotional health.
5. The typical schedule of both parents and children.
6. Available support systems of each parent (for example, help and involvement of grandparents or other close relatives).
7. Sibling issues. Generally, brothers and sisters will be kept together, but under some circumstances it may be necessary to consider separating them.
8. Care arrangements before the separation. Who was the primary care giver?
9. The child’s wishes. The Office of the Children’s Lawyer is often appointed by the court to help in determining the child’s wishes. Once a child turns 12 years of age, his or her wishes to live with one parent or another are usually respected by the courts.

When determining child custody the past behavior of a parent will not be taken into consideration by the courts, unless their behavior reflects directly on the individual’s ability to act as a parent.
If at all possible it is always best to try and avoid going to court over your children. However, in some situations this is the only option. In this case a judge will hear both parents’ arguments and then make a ruling based on what they believe is in the best interest of the children.
When one parent is awarded custody of a child, the other parent is normally granted access – this is sometimes referred to as “visitation”.

(Above sourced from Divorce Canada. Below sourced from Legal Match )

05.

What is a Primary Custodial Parent?

When the parents of a child separate, divorce, or when one parent dies, child custody issues can often arise. There are two aspects to child custody — legal and physical custody. Parents with legal custody rights make major life decisions on behalf of the child. These decisions typically involve very important aspects of the child’s health, safety, and welfare.
Examples of such decisions include decisions as to what kind of schooling, medical care, and religious instruction the child receives. Parents with physical custody rights are those who are physically present with the child at the child’s residence. The parent who spends the majority of the time with the child or children has “primary physical custody” and is referred to as the “primary custodial parent.”

06.

What is the Difference Between a Custodial and a Non-Custodial Parent?

Courts award primary physical custody to a parent under what is referred to as a joint physical custody arrangement. This arrangement defines the rights and obligations of each parent with respect to a child. Under this particular child custody arrangement, joint physical custody, the child will reside with one parent at certain times, and will reside with the other parent at different times.
For example, a child or children may reside with one parent during weekdays, and with the other parent on weekends. The parent who is not the primary custodial parent (in this instance, the one who resides with the child on weekends) is referred to, simply, as a custodial parent.
A custodial parent can be distinguished from a non-custodial parent. A non-custodial parent does not have joint custodial rights (there is no joint custody arrangement); the other parent is awarded sole physical custody under a court order. The non-custodial parent is entitled only to visitation rights. 

07.

Is the Primary Custodial Parent Likely to Have Legal Custody as Well?

As a practical matter, the parent who has primary physical custody of the child is likely to have legal custody as well, since the parent who lives with the child is often in a superior position to make daily and emergency decisions regarding the child’s safety and welfare — by sheer virtue of proximity to the child.

08.

What Factors does a Court Consider When Awarding Primary Physical Custody?

In the past, custodial determinations were often made on the basis of stereotypical presumptions about men and women — presumptions that courts today have found to violate the Equal
The following factors (among others) are evaluated to determine what custodial arrangement is in the best interests of the child:

1. Each parent’s individual economic circumstances;
2. Each parent’s mental health status;
3. Each parent’s physical health status;
4. The child’s age and gender;
5. Which parent’s residence is in closer proximity to the child’s current school, place of worship, and where the child receives instruction in extracurricular activities. These facts are examined to assess whether placement with a particular parent would unduly disrupt a child’s need for routine and stability; and
6. The child’s own preference as to whom should be the primary custodial parent (if it is determined that the child haves the mental and legal capacity needed to express such a preference).

Certain circumstances will negatively impact a parent’s ability to demonstrate that their having primary physical custody of the child is in the child’s best interests. In some cases it can eliminate the possibilities outright. These include:

1. Parental physical or emotional abuse
2. Excessive parental consumption of drugs or alcohol; and
3. Parental inability to care for a child with special needs. 

Highly Conflicted Divorce Parents

Divorcing parents are sometimes caught in a very high level of conflict. Each can be hurt by partner's crude accusations in affidavits, court, social media and former circle of friends. They may have lost many friends, as well as their familiar home and neighbourhood, and there is a lot more to lose regarding custody, property, business, public image, etc.
Yet the hardest part is when children are caught in their divorcing parents' conflict. It can affect their sleep, their behaviour with peers, their school grades, etc. When parents expose children to their negative views, anger and hate with each other, then the children are very hurt, feel anxious and insecure, blame themselves, and often try to fix the situation by resisting the parent who left or was forced to leave.
Psychologist Marilyn Wedge reminds parents: "Although divorce is a sad ending to a marriage that began in love, divorce does not have to be damaging to children." she further gives a list of the "ten most important things parents can do to help their kids navigate the stormy seas of divorcing parents":

1. Don't try to recruit your child into siding with one parent against the other.
2. Do contain your hostility in front of the children. Hearing divorcing parents argue is the most common cause for a child of divorce to have problems.
3. Do renegotiate a healthy co-parenting relationship after divorce. You don't have to be best friends with your ex, but you do need to have a civilized relationship so that your child is not burdened by your ongoing anger.
4. Don't badmouth your ex in front of your child. In fact, make a point of telling your child a few good things about the other parent.
5. Do get on the same page with your ex about all rules concerning the children: bedtime, homework, amount of screen time, curfew, and so forth.
6. Do take a parenting class or attend family therapy with your ex if you are having trouble coming to agreement about rules and consequences for your child. Allow a professional to help you manage your anger at your ex.
7. Don't badmouth your ex's parents or other family members. Children love their grandparents, aunts, and uncles, and if a parent says negative things about them the child will feel conflicted.
8. Do reassure your child that she did not do anything to cause the divorce. Children often feel guilty when parents get divorced and need to be reassured that the divorce was not their fault.
9. Do tell your child that both parents will continue to love him and spend time with him.
10. Do tell your child that you expect her to continue to do well and be happy.
(Sourced from Psychology Today)

Divorce Care

Many who go through divorce feel they are alone and everyone else is judging them. Often friends and even family take sides and some are not friendly anymore.

There is a support group running just about everywhere, and almost year round. People find those groups helpful even if they went through separation and divorce 10 years earlier, and wish they found such a group at that time.

You can get a list of groups running in your area by going to www.divorcecare.org and plugging your postal code in the search box. Watch also for locations near you that give the kids program (DC4K - Divorce Care for Kids), which are less frequently available.

The Divorce Care program was created by professionals who experienced divorce themselves, and is at its third edition. It involves 13 two-hour meetings with refreshments, watching a short video and having discussions in small groups and in the large group.

It is a very safe and friendly environment, and some long term friendships and support can develop. Participants can attend the group several rounds, and it does not cost, except for buying the workbook at organiser's cost. The program is built on Christian values but is non-judgmental and is friendly to any religion.

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Disclaimer
The information on this site is not intended as legal advice, and will not replace your need to consult a lawyer.
You are responsible to obtain legal advice before using any information from this site for your specific case.