9th September 2010
0

What is Custody? by Kurt E. Schlachter

I am frequently asked to define the word “custody” because I find that parties to potential family law proceedings are quite ill-informed in that regard.  In short, custody does not mean who the children of the parties’ relationship will reside with.  Residency is but one aspect falling under what I describe as the “umbrella” of custody. The remainder of that umbrella relates to the major decision-making required for the upbringing of the children at issue, ranging from matters such as religion, schooling, health care, and who the children will associate with.

Sole custody means that one of the parties, who will by implication also be the primary caregiver of the children, will make all of the decisions with respect to the children’s upbringing without input from the other parent. Joint custody, which in my experience seems to have become the default custody scenario, requires that both parents have input into the major decision-making required for the upbringing of their children.  Typically, the primary caregiver identifies how they wish to make a particular decision, and seeks input from the other parent.  In the event of a disagreement, the parties may need to seek a ruling from the Court to determine the particular decision in dispute.  In either a sole or joint custody scenario in which one of the parents has primary care of the children, which is the most typical scenario, the remaining party will typically exercise some form of access to the children.

Shared custody involves the children spending approximately equal amounts of time with each parent, such as the children spending alternating weeks at each parent’s residence.  Clearly, this custody arrangement calls for each parent to establish a household that is conducive to the children spending extensive amounts of time there, making it one of the most expensive parenting arrangements.  Shared custody also typically requires the parties to maintain a fairly close geographic proximity to ensure that the children can attend the same schools, activities, etc. while residing in each party’s residence. This particular custody scenario tends to also require an element of joint decision-making with respect to any major decisions required for the upbringing of the children (i.e., joint custody).

Split custody involves one or more children of the relationship residing primarily with one parent, and the remaining children of the relationship residing primarily with the other parent, with the parent who does not have primary care exercising some form of access to the children not in his or her care.  This particular custody scenario may also require an element of joint decision-making with respect to any major decisions required for the upbringing of the children (i.e., joint custody), or the primary caregiver may have the authority to make those decisions without input from the other parent (i.e., sole custody).

It should also be noted that terms such as “custody” and “access” are by legislation only properly applicable to parties who are married and have initiated proceedings under the Divorce Act.  Non-married parties, or married parties who have not initiated divorce proceedings, are required to rely upon the provisions of the Family Law Act, which uses different terminology to address parenting issues. Please visit out website in the near future for a discussion of the issues of access, as well as the different parenting terminology that applies to married vs. non married couples.

mm

Written by Kurt Schlachter