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When people think of claiming "custody" as part of their family law proceeding, they generally think of it being a claim to obtain the primary residence for the children.  In the family law context, the words "custody" or "sole custody" have a very different meaning.  Generally, when you make a claim for custody you are making a claim to have decision-making power regarding your children.  Having sole custody does not necessarily mean that the children will reside with you on a full-time basis, but rather having sole custody means that you are the sole decision-maker as concerns your children.  That does not necessarily give you a right to not include the other parent in decisions regarding the child.  It is oftentimes both wise and beneficial for the children to maintain a consultation type relationship with the other parent to discuss decisions that need to be made for the children.  Sometimes personalities or differences will make that difficult or impossible or lead to further conflict.  In the end, the parent with sole custody will have the legal right to make the final decision on any decision concerning the children.

 It is not always the case that the court will make an order for sole custody in a family law proceeding and there is generally a possibility of the court making an order for joint custody.  Joint custody is basically the parenting arrangement in place before two parties separate.  Each parent has the right to be consulted and involved in the decision-making process regarding their children.  One of the biggest impediments to a joint custody order however is the requirement that there be a relationship of co-operation between the two parents.  There is a solid line of case-law in Ontario courts setting out that joint custody is an inappropriate arrangement in the absence of such co-operation.  It makes sense in that the court has an interest to make orders that are in the best interests of the children and that will help to resolve conflict in the family structure.  If decisions about the children between two separated parents are disputed and the source of argument on a regular basis it may be better for the parties and for the children to not have to effect a joint decision-making process.  It can be a low threshold in determining whether co-operation exists, whereby there are even cases that consider the fact that custody itself is being disputed in the courts being evidence that the two parties do not have the right type of relationship with one another to effect joint-custody.  My experience has been that it does not take very long for your lawyer or a family law judge to provide an opinion on whether the requisite co-operation exists. 

Another development that is common in the family law context is that one parent intentionally makes efforts not to get along with the other parent in an attempt to obtain sole custody.  In the absence of a co-operation relationship, sole custody is the main option for the court.  One party often decides that they do not want to have to consult with the other party for each and every decision for the rest of the children's minority and decides to create conflict and seek sole custody.  The courts have dealt with this issue also and have basically stated that one party cannot intentionally create a situation of no co-operation so as to obtain custody.  This creates a complicated situation for the court whereby the court needs to assess and evaluate whether joint custody is possible for two parents and whether one of the parents is effecting such a strategy. 

Another situation that is common to my practice is the prevalence of mothers obtaining custody orders of their very young children.  Loving and caring fathers often question how this is fair when they care just as much for their child as the mother does and have just as much experience with the child and ability to care for the child as the mother does.  The reality of the situation is that while that all may be true, there is a uniquely close bond between a young child and the child's mother that is created from the period from birth to the current time.  The court generally must evaluate not only the benefits that each parent can provide for that child in creating an excellent home for the child but the court must also evaluate any disruption or emotional harm that a child may suffer from being torn away from either parent.  In the absence of neglect, abuse, significant deficiencies in parenting skills or a home that is not clean, safe or proper in some material way, it is often the case that the court will not separate a child that has a close emotional bond with his or her mother.  I advise clients in this position that they may need to be "access parents" for the immediate future and that the door will be kept open for them for the future when that young child is old enough to provide his or her input on which parent he or she would like to reside with.

 There is also the possibility of shared custody.  In this arrangement, the child or children often reside with each parent on an approximately equal amount of time where it becomes generally the arrangement that the parent who is caring for the child at that moment has custody.  Basically, this is a joint custody arrangement at its center, meaning that if there are any significant or major decisions that need to be made regarding the child/children, there will still be a requirement for consultation and a joint decision.

Custody is often a hot-bed for litigation between two parties, but it does not need to be.  It is generally the case in the Ontario courts that judges advise parties that custody is "just a word".  Such statements by family court judges is not meant to diminish the legal effect or ramifications of a custody order, rather, their meaning is that it is possible for one party to give up custody to the other parent while maintaining a legal requirement that the custodial parent must consult and take input from the non-custodial parent.  It is also possible to require consultation for particular issues that are most important to a parent that is giving up custody.  In such circumstances, "custody" truly does become a word.  Identifying this reality can often help to resolve your family law matter more quickly and at incredibly less expense and in such a way that is the least emotionally damaging to the parents and to the children. 

At the end of the day, dealing with custody may be the single most important part of your divorce or separation.  It is important that your individual situation be considered and assessed by a practicing family lawyer to identify both strengths and weaknesses in your custody claim and whether your case can be more successfully negotiated.    

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                                                                  Last modified: April 25, 2011 10:24 PM