What Does the Term “Custody of a Child” Mean

When there are children in the marriage, one of the things that family lawyers hear most frequently at initial consultations is that the client wants either “custody” or “joint custody” of those children. However, it is rare for those same clients to understand what the term “custody” means. Custody no longer refers to where a child lives. In Ontario Family Law, the term “custody” refers to who makes certain decisions with respect to that child. In many cases, if not most cases, those decisions regarding the child are not controversial and so who has custody makes little difference.

When parents separate there are two important groups of issues that they, or if they cannot agree, a court or arbitrator, must decide with respect to the children. Those groups of issues are as follows:

(a) How much time the children will spend with each parent and when they will spend that time with each parent;

(b) Who will make the big decisions in relation to the child? Those big decisions are decisions related to education, major medical treatment, religious upbringing and extracurricular activities in which both parents will have to be involved.

It is the decision-making, as described in Paragraph (b), that relates to who has custody. If a parent has “sole custody”, without any other limitations, then that parent can make those decisions in relation to education, medical treatment, religion and extracurricular activities by him or herself. If the parents have “joint custody”, then they must make those decisions together. Ironically, it is fairly rare for parents to have a disagreement over what school a child should attend, whether the child should have medical treatment, or what religion the child should be raised in. So for most separated families who have custody really makes little difference. In “high conflict separations”, the parents fight with each other over almost everything. They will fight over issues that they might not have fought over while they were together. Sometimes they will fight over simple things like what school the child should go to just for the point of having the fight. In those cases, joint custody does not work well.

Sole custody does not work well where one parent wants the other parent out of the lives of the children. If that parent has sole custody he or she may use it to make decisions to deprive the children of a relationship with the other parent. For example, the parent may choose to have the children go to a school that is far away from the other parent or that in some way makes it difficult for the parent to visit with the children. Judges try quite hard to keep parents who are not supportive of the children’s relationship with the other parent from having sole custody. They either try to order joint custody or give sole custody to the parent who will facilitate a relationship with both parents.

Unfortunately, custody is usually more of a status symbol than a legal necessity. After separation, parents like to say that they have “custody” of their children. Parents will fight to have that “status symbol” when they would not have thought over the decisions that are made by the person who has custody. For that reason, it is becoming increasingly popular for separation agreements and court orders to not mention the word custody at all. Instead, the agreements, or court orders, state where the child will be living and when and which parent gets to make which decisions. When deciding those issues, the courts usually look at what went on during the marriage in terms of what time the children spent with each parent and who made the decisions during the marriage. If possible, courts try to leave things the way they were.

The only time that the term “custody” can become important is with regard to international disputes in relation to a child. If one parent wants to abduct a child to another country it can make a difference which parent has “custody” when there are legal proceedings to have that child returned. However, when one parent acts unilaterally to remove a child from the other parent’s care, judges in Ontario often do not have concerns about making an emergency custody order in favour of the parent who is left behind. In deciding whether a child should be returned to another jurisdiction, judges in Ontario are also more interested in what the parenting situation looked like before the removal than who had the label of custody. Put another way, when Ontario Family Court judges are considering what parenting orders to make, how the parents parented the child in the past is usually more important than whether one of them had a label of “custody”. 

There are also different types of custody. Parents can have sole custody, joint custody, shared custody or split custody and they can also have one of those types of custody combined with parallel parenting.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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