Generally custody deals with who has the right and responsibility to make decisions concerning the care and upbringing of the child.
When two people have a child, both of them have equal right and equal responsibility to raise the child and make decisions concerning the child’s care and upbringing. However, when parents do not live together, they must determine how these parenting rights and obligations could be shared between them. They have to decide who has the right and responsibility to make decisions regarding the child, or who the child resides with.
Custody is a parent’s right to make important decisions concerning the child’s care and upbringing. Such important decisions include the child’s religion, education and medical treatment. Custody also includes the physical care, control and upbringing of the child. When the parents of the child disagree on the child’s care and upbringing, the custodial parent makes the final decision.
Custodial arrangements can be by a court order, a separation agreement signed by the parties or by “de facto” custody i.e. there is no court order or agreement but the child in fact, resides with this parent most of the time. The parent who lives with the child most of the time can apply for custody and support any time after separation or even while living separately under the same roof after the relationship has ended between the other parent.
Matters relating to custody of or access to the child are determined solely on the basis of what is in the best interests of the child. That is the basic principle and that is the only test. It is not determined based on what a parent wants or is entitled to.
TYPES OF CUSTODIAL ARRANGEMENT
Sole Custody
One parent has sole custody of the child and the other parent has access to the child. The custodial parent lives with the child most of the time and has the main responsibility to raise the child and make important decision concerning the child’s care and upbringing.
The custodial parent has full parental control and responsibility for the care, upbringing and education of the child.
Joint Custody
Joint custody is a parenting arrangement where both parents share responsibility in the making of major decisions concerning the child’s welfare.
Parent who cooperate and can work together to raise their child, could have joint custody. Both parents share the right and responsibilities of custody even though they live separate and apart. They both have the right to make important decisions concerning their child.
Joint custody is generally not granted where the parents are unable or unwilling to cooperate in decision-making concerning the care, development and upbringing of their children.
Shared or Divided Custody
In this parenting arrangement the parents jointly exercise normal parenting responsibility and the child divides his/her time between the two parents, often on a rotating basis.
Legal custody is given to both parents, with care and control alternating at stated intervals (e.g. weekly, bi-weekly, bi-monthly basis etc.) and liberal access in the period of alternation when the child is in the care and control of the other parent.
This custodial model requires continuous interaction and cooperation between both parents.
In determining child support payable, the term “shared custody” is used to determine the amount of time a child spends with a non-custodial parent for the purpose of determining how much support should be paid.
Where one parent has sole custody but the “access parent” spends at least 40% of the time with the child, the custodial parent might receive less child support payment.
Split Custody
In this parenting arrangement, one parent has custody of the child in terms of being the parent with full parental control and responsibility for the care, upbringing and education of the child. The other parent has care and control of the child in terms of having physical possession and reasonable access is given to the parent having custody without physical possession. If a couple has three children, one parent could have custody of two children and the other parent would have custody of one child.
Parallel Parenting
In this arrangement, each parent has equal right to make decisions regarding the child when the child is with him or her, and decision making on major issues such as health care, education and religious instruction is often divided e.g. one parent may have full control and responsibility for the child’s education while the other parent has full control and responsibility regarding the child’s religious upbringing.
This form of joint custody does not depend on a cooperative working relationship or good communication between the parents. However, it maximizes contact between the child and each parent while minimizing interaction between the parents.
Access is the right of the child to spend time with the child non-custodial parent.The law says a child should see each parent as much as is consistent with the child’s best interests. The law assumes it is in the child’s best interest to have a good relationship and maximum contact with each parent. For this reason, the law grants the non-custodial parent, access to the child so he/she could spend time together with the child.
Access also includes the right of the non-custodial parent to request and obtain information from third parties concerning the child’s health, education and welfare. The “access parent” does not have the right to make decision about how the child should be raised
Access could be denied or restricted only if the non-custodial parent engages in a behaviour that is likely to harm the child.
The right to access does not depend on payment of support. The court does not refuse access to a parent because he does not pay support. The custodial parent also cannot deny access for this reason. There are other ways to get support for an access parent.
Types of Access
To speak with a Toronto child custody lawyer, please call (416) 972-0404 or toll free (855) 396-1207.
