Custody
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There are not many words in Canada which can evoke such a wide range of emotions as the word “custody”.
Parliament has pondered amending the Divorce Act to delete reference to this word. The word has too much baggage associated with it to be of much use anymore. However, to date no legislation has been passed – mainly because there is no agreement on what should replace “custody”. So, for the time being we all have to deal with the issue of custody.
There is a lot of misinformation out there about custody.
There are two aspects to custody.
This can be ‘sole custody’ or just ‘custody’ or ‘joint custody’. If one party has custody then that party makes the major decisions for the child. If the parties have joint custody then they make the major decisions together.
Note the word ‘major’. If the child is with a parent on the weekend then that parent makes the daily decisions associated with the child e.g. where to go, what to do etc. It is only major decisions on health, religion and educational issues that are made together.
When I first started practising over 21 years ago approximately 95% of orders and agreements were sole custody. In the last few years 95% of agreements are joint custody. In court, there are still plenty of sole custodial orders being made – the rationale being that if they are in court they can not get along so they can not make major decisions together. However, this is also changing as some Judges are ordering joint custody even in the face of conflict.
Over the decades there have been an awful lot of resources spent on determining whether parties should have sole custody or joint custody. In my experience, often it does not matter very much as there are not many major decisions left to be made. If there is a health issue then as parents we listen to the health professionals. The child enters an educational stream and usually follows that stream through his or her education so it is rare that there are major educational issues.
My main point is that before there is a big battle over who gets “custody” we had better all be sure that this is a battle worth having – or is there another way to deal with the issue.
There are lots of other language options. For example, we do not use the word custody. We have a parenting agreement which lists how decisions are to be made. Or, there is parallel parenting e.g. mom makes decisions regarding health and dad makes decisions re: education.
There are lots of schedules out there. Some parents who separate feel that it is in their children’s best interests to have a shared parenting (approximately equal time) schedule. Examples are week on, week off or Monday and Tuesday with mom, Wednesday and Thursday with Dad then alternate weekends.
Other parents feel that it is in the children’s best interests to have a primary residence with one parent and for the children to visit with the other parent on alternate weekends and one evening during the week.
In my experience it is a good idea to deal with the special or holiday times e.g. Christmas, summer holidays, Mother’s Day, Father’s Day, Spring Break. Some couples like to deal with other times e.g. children’s birthdays, parent’s birthdays, long weekends etc. My concern is that if you have too many exceptions to the general schedule then it can seem like there is no general schedule – only exceptions.
Sometimes the parents do not agree on the schedule. There are other professionals e.g. social workers, parenting mediators, Office of the Children’s Lawyer, who can assist if there is no agreement.
The most important issue on relationship breakdown is the children. All of the adults involved have a duty to ensure that we place the best interests of the children at the forefront. It is the most important issue so we all should act accordingly.