Family Law | Custody of Children





The issue of custody of children is perhaps the issue that generates more emotion on the part of parents who are separating than any other.  The law in many jurisdictions says that, unless unusual circumstances are present, both parents are equally entitled to custody of children.  There are two ways to settle or "resolve" the issues that arise when married or common-law spouses separate. Settling the issues by a written agreement is, by far, the best way of resolving the issues that emerge when couples separate.  This principle is illustrated best when the issue of custody of children is examined.

Determining how custody of children is resolved should be dealt with in an agreement between the parties.  If the parents end up in family court, a complete stranger (a judge) will decide who will get custody of the child or children.  In family court, the issue of custody is usually approached by a judge on the basis of which parent was the "primary caregiver" prior to separation unless there are other factors that would suggest that the "primary caregiver" should not be the parent that retains custody of the children.  Here we are referring to other issues that may exist such as drug or alcohol abuse, psychiatric issues or other issues such as abuse or neglect.  In those cases, a local Children's Aid Society or Family Services Agency will often intervene where a child or children may be at risk of harm.  Child protection court proceedings will usually take precedence over the parents determination regarding where a  child or children are placed.  I will say more about child protection matters in a later post.

JOINT CUSTODY

Parents who are living separate and apart can have "joint custody" of the child or children.  Joint custody means that both parents will participate in the major decision making that will be required in the lives of the children.  Now, in a regime where there is 'joint custody' children can have their "primary residence" with one parent.  That just means that the child or children will live with only one of the parents most of the time, usually Monday through Friday.  This usually means the child or children will live with that parent more than 50% of the time.  

So, even though the child or children live "primarily" with mom, for example, dad can still participate in the major decision making that is required in the lives of the children.  "Major" decisions usually revolve around the issues of education, religion and medical treatment.  (Day-to-day decision making usually rests with the parent where the child or children "primarily" reside).  If separating parents can decide where the children "primarily" reside, the other parent will still be able to participate in those major decisions where it is a "joint custody" regime. 

 

Here, the benefit of resolving this issue by way of an agreement is most easily seen.  That is because "joint custody" obviously requires that the parents can, and will be, reasonable and cooperative with one another in making those major decisions.  If the parents cannot be reasonable and cooperative with one another, joint custody will not work.  For that reason, if a case gets to family court, judge's will rarely make an order for joint custody.  That is because, if the parties are already battling it out in court, they will likely not enjoy the degree of reasonableness and cooperativeness with one another that is an absolute requirement in order for a joint custodial regime to work.  

Once parties are embroiled in family court, unless there is some other very good reason to do so, a judge is unlikely to make an order for joint custody.  In that case, one parent or the other will be awarded sole custody of the children, meaning that not only will the children reside primarily with that parent, but that parent will also be the one to make the major decisions that are required in the life of the child or children.




A rather disturbing issue arises where the custodial parent, often the mother but not necessarily so, will try to "marginalize" the other parent.  That is to say, the custodial parent will try to restrict or deny access or visitation by the other parent, often the father.  The trend is seen most often with young parents and it is disturbing because most lawyers and judges will agree that, normally, it is the child or children who are the real casualties when a parent attempts to exclude the other parent from the lives of the child or children.  In my view, the attempt by one parent to marginalize or exclude the other parent from the lives of the child or children is emotionally abusive to those children and such a parent has deliberately chosen to ignore the best interests of those children.

SHARED CUSTODY

"Shared custody" will usually mean that the child or children will spend equal time with both parents.  Usually shared custody means that the child or children will live with one parent for one week and with the other parent the following week although some parents use a two week schedule.  Shared custody will require that both parents be "on the same page" when it comes to parenting the  child or children.  Shared custody can be clumsy or unworkable unless both parents are completely committed to the shared custody regime and are determined to make it work in the best interests of the children.

SPLIT CUSTODY

"Split custody" means that one parent will assume custody of one or more of the children while the other parent will assume custody of the remaining child or children.  Split custody is not common.  Many would suggest that siblings ought to be raised together but there are those situations where that might not be in the best interests of one or more of the children.  Hence, a split custody type of regime is available in those rare types of situations.

SUMMARY

If you are separating from your spouse and you have children, there are few, if any, issues that involve as much emotion as the issue of custody.  Experienced legal counsel can be very helpful in these situations.  For more on your parental rights and obligations in New Brunswick  call my office for a no-obligation initial consultation at (506) 496-5872 or, for more information, visit my website at:


Grant Edward Rayner B.Comm., LL.B.*

* In practice since 1985.




Location: Fredericton, NB, Canada

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