13/06/2018 0 Comments
Explaining Child Custody in Waterloo
When parents separate or divorce, they sometimes fight over child custody. In Waterloo and elsewhere, parents often confuse the terms custody and access, thinking that custody refers to both decision making and access. Custody actually means having authority for decision making over a child’s life (e.g., health, education, religion).
Access means time spent with a child. Regardless of who has custody or if both parents do, each parent will nearly always be allowed to have some access with their child.
Sole and joint and shared custody are predominant in our society, but there are some situations of parallel and split custody. These types of custody are all described briefly below.
Sole custody is when a child or children lives with one parent and the other parent usually has access rights. The parent with sole custody makes the key decisions in child or those children’s lives (what school & activities each child will attend) without having to consult with or obtain agreement from the other parent.
Sole custody is often awarded if the parents live far apart (e.g., one has relocated) or if one parent is unable to care for a child (e.g., due to work travel, illness, or incarceration). The courts also award sole custody in situations where the parents cannot get along or communicate jointly to serve the best interests of the child.
Joint and Shared Custody
Joint custody is the default where parents start from and this arrangement typically continues where it is in the best interest of a child to maintain relationships with both parents.
Joint custody refers to joint legal custody, while shared custody refers to joint physical custody. Joint legal custody is when both parents have input into the decisions affecting a child’s life. Joint physical custody or shared custody is when the children spend at least 40% of their time with each parent. If the balance of time spent with a parent is less than 40%, then the amount of child support payable is impacted.
Parallel custody is when the decision making is divided between the parents. For example, one parent may make decisions about the education and health, while the other parent may make decisions about religion and recreational activities. The intention is to give both parents some decision making while minimizing their need to make jointly agree.
Split custody is probably the most infrequent type of custody. Split occur entails the separation of custody by parent, such that one parent has custody of one or more children and the other parent or party (e.g., grandparent) has custody of the other child or children. This arrangement is still very new as parents and courts have been reluctant to separate siblings in any way, even though the separation is legally about decision making, not access. The courts generally prefer one parent deciding issues of residency and schooling (presumably together), to ensure that sibling relations remain intact, even though the arrangement in practice is that children alternate together on weekends between their parents’ homes and live separately during the week.
Split custody has been ordered in the courts in rare situations, where appropriate, such as if one child has been completely alienated from a parent, but the sibling can still have a good relationship with that parent. Leggatt v. Leggatt, 2015 ONSC 4502 is one such case, where the parents gradually ended up with custody of one child each. In 2011, the father was resolved that the parental alienation between him and his 14-year-old son Josh could not be undone, so he relinquished custody of Josh and retained joint custody of his 10-year-old daughter Nicole. By July 2013, Mr. Leggatt had interim sole custody of Nicole, which was made permanent in 2015 and Ms. Leggatt was denied access to Nicole until she obtained further counselling.
How Courts Decide
When the courts make a determination regarding child custody, the judge focuses on the “best interests of the child,” as set out in subsection 24(2) of the Children’s Law Form Act, R.S.O. 1990, c. C. 12. A judge may also consider the schedule of the parents and children, any issues with the siblings, the parental abilities of both parents and/or the wishes of the children.
If one parent views that the other parent is unfit for custody, then a higher burden of proof is required by the parent seeking sole custody. The courts rely on the “better parent standard” in such cases, which requires that a parent be able to provide continuity in the child’s life and considers factors such as home life and living accommodations, financial capability to care for the child, access to the child’s school and accustomed lifestyle, and the amount of time spent with the child. Willingness of a parent to be co-operative with access and fostering a relationship with the other parent is highly regarded when the court makes a determination of custody.
Contact C. Richard Buck, Family Lawyer in Waterloo for Child Custody
Sometimes joint or sole custody are the arrangements determined to be in the best interests of the children and sometimes creative solutions are better. A lawyer who is a certified specialist in family law understands the custody options that can help you achieve a good result in the long run for your family. Contact the law offices of C. Richard Buck for your matter related to child custody in Waterloo. We may be able to help you settle the matter fairly and affordably. Call 519-579-3400.