Going through a child custody battle can be very difficult and stressful. When two people have a child together and decide not to continue their relationship whether it was a one-time encounter, dating, common law or marital relationship, a number of questions will quickly arise. Who will have custody? Which parent will the child reside with? What will be the frequency and duration of the visits the child will have with the parent they do not reside with? Ideally, both parents are able to come together and work out these questions between themselves. Sadly, this is not always possible.
In Ontario, each parent has an equal right and responsibility to take part in the upbringing of the child. The equal right to make decisions about their child’s care and how their child is raised exists whether or not the parents are married.
Generally, in intact families parents share the decision-making authority. When parents separate, however, they must arrange how they will share or divide their respective parenting rights and responsibilities. In other words, separating parents must make arrangements for child custody and access.
Terms like “custody” and “access” are frequently used in family law, but it’s important to understand what each one means in order to know what it is that you want to fight for.
WHAT IS CUSTODY?
The term “custody” refers to decision making authority. Essentially, the parent who has custody of a child has the power to make important decisions in the child’s life. Usually, these decisions relate to the child’s religion, school and educational programs, and health care.
Sole custody vs. Joint custody
Sole custody: This is where one parent has the responsibility and legal authority to unilaterally make major decisions about the child’s care regarding the child’s religion, school and educational programs, and health care. Most commonly, the child lives primarily with the person who has sole custody.
Sole custody may be appropriate when there is a level of parental conflict that makes communication between the parents regarding the best interests of the child untenable. It may also be appropriate when there are issues with physical or mental abuse, substance abuse, mental illness or poor judgment. When deciding the appropriate custodial arrangement for a child the court aims to mitigate concerns or limit risks in the life of the child.
Joint Custody: Where separated parents are in agreement on major issues affecting the life of their child, have little or no concern for the judgment of each other, and have demonstrated the ability to communicate effectively in the best interests of the child, a Joint custody arrangement is tenable. With Joint Custody both parents legally have an equal say as to major decisions affecting their child such as the child’s religion, school and educational programs, and health care. In this custodial arrangement, the assumption is the parties will discuss an issue and jointly decide or the decision will be made by one parent with the other parent acquiescing to the judgment of the other.
Finally, in some cases parents divide decision making. For example, one parent can make the medical decisions while the other makes the educational decisions.
Shared custody does not affect the custodial arrangement agreed to by the parties or ordered by the court. Instead it relates to child support and so if you “share” custody with your former spouse/partner it will not affect the custodial parent’s power to make final decisions. Rather, shared custody may allow the access parent to pay less child support if he or she can show that the child spends at least 40% of the time with him or her. The 40% time can be comprised of weekends, overnights, and parts of vacations.
Another type of custody arrangement is split custody. Although not very common, parents who have split custody have more than one child together and each parent has one or more child living primarily with him or her.
WHAT IS ACCESS?
When one parent is awarded custody of the children, the other parent is normally granted the right of access (visitation). Access visits can either be unsupervised or supervised, depending on what is felt to be in the best interests of the child.
Commonly access is unsupervised. This is where the child goes to visit the parent, and no-one else needs to be present while the child and parent are spending time together.
A typical access schedule involves the child spending alternate weekends and one or two nights per week with the parent who does not have primary care of the children. Typically, the access parent will also share holidays, including statutory holidays (i.e. long weekends), Christmas school break, March break, summer holidays and religious holidays etc.
The lawyers at the Masellis Family Law Group have extensive knowledge and experience in child custody and access matters. Our lawyers and staff are committed to protecting your legal rights and getting you the most just and fair outcome possible. Whatever your needs are we, at the Masellis Family Law Group, encourage you to contact us for a free, no obligation, confidential 30 minute in person consultation to discuss your matter. We are here to help.
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