Custody Schmustody!

May 13, 2014

By Charles Morrison, Lawyer

I call it the “C-Word”.  As a family lawyer, I encounter more contests over custody than perhaps any other issue.  It is also among the most misunderstood concepts in family law.  Practically like an ice cream store with 33 flavours, we encounter custody, sole custody, joint custody, shared custody, joint legal custody, joint physical custody, shared custody and a host of other terms.   To this muddle, add questions of access, time sharing, visitation, periods of care, primary residence, secondary residence, parallel parenting and other endless varieties. We are sometimes left with a confusing mess that even lawyers do not always understand.

Let me try to put things in perspective.

First of all “custody” is a parenting concept.  In my definition, it is the right and obligation to raise the child and make the long term decisions regarding health, education, religion, discipline and other matters relating to the child’s general welfare.  It is not, as many people believe, a term that determines how much time a child spends with each parent. 

In a “sole custody” situation, one of the parents has this decision making responsibility.  They can, if they wish, involve the other parent for consultation and discussion.  The other parent, except in unusual situations, has the right to information about the child including information from schools, doctors and other professionals.  The other parent, in the usual case, also has the right to contact (access) to the child including visitation and communication by telephone, computer and other electronic means. 

In a “joint custody” situation, the father and mother co-parent.  Although they can no longer live together as spouses, they are able to maintain a high degree of communication and co-operation so that they can make major decisions together for the benefit of their child.  There will undoubtedly be times when they disagree and they will have a peaceful and co-operative way of resolving such disagreements.  Each parent still makes the day to day decisions when the child is with him or her.   Joint custody does not, by its definition, mean that a child spends equal time with each parent nor does it even dictate any specific division of time.  There can be joint custody arrangements whereby a child spends no more time with the non-residential parent than they would under a sole custody situation.  There are other cases in which there is considerably more time and in some cases a division approaching roughly equal time.  Because joint custodial parents accept each other as a good and capable parent and strive for co-operation and agreement, the spirit is generally one of generosity when dealing with time sharing responsibilities.

Sometimes people agree to joint custody with no real prospect of being able to work together to co-parent their child.  That may, on paper, describe their legal arrangements as “joint custody”, however, they never truly produce the harmonious parenting relationship that joint custody should entail.  It may please one or both parents knowing that they have not “given up” sole custody entirely to the other parent.  I hear this sentiment a good deal however, if the parties are unable to co-operate, what they may have on paper will not help them very much.

Now, here is where things get confusing.  Sometimes we hear of “joint legal custody” as different from “joint physical custody”.  Much of this seems to come from some of the American courts and in my opinion it unnecessarily confuses the issues.  I would avoid using these terms as they only muddy the waters. 

I also frequently encounter references to “shared custody”.  To some, it is really just another term for joint custody.  Unfortunately it also finds its way into some of our family law but, surprisingly, that part of the law dealing with child support.  Our Child Support Guidelines, which come both within Canadian divorce legislation as well as provincial support legislation, use the term, and frankly I wish that they had chosen another phrase.  Both Guidelines provide that if a child spends 40% of the time or more with one parent and the balance of the time with the other parent (don’t ask  how days, weeks, hours, waking time, sleeping time etc., is measured as that is itself the subject of much case law) then there is a special calculation of child support responsibilities.  So the proper legal use of the term “shared custody” is not a custody term at all but is rather a matter of child support.  People will, however, sometimes use it as a substitute for the phrase, “joint custody”.

There are some parents who try to avoid using the “C” word entirely in order to deflate what could be a nasty contest.  We do see some separation agreements (and even court orders) that avoid the words “custody” and “access” entirely and instead refer “decision making responsibilities”, “periods of care” and “residence”  There is much that is admirable in this approach however, our family legislation still uses the more traditional words “custody” and “access”.  In the event matters later go to court, it can sometimes be difficult to determine the character of the parties’ parenting relationship.  Many parents, usually with the help of professionals such as parenting co-ordinators fashion an extensive “parenting plan” document which describes in great detail, how the parties will each bear responsibility for raising their child.  The parenting plan is far more elaborate than what most courts would typically order or what might be found in a standard separation agreement.  Many parenting plans avoid the “C” word.

I will also make brief mention of what is known as, “parallel parenting”.  In this type of parenting arrangement, each parent is given ultimate responsibility for different types of decisions.  For example, the mother may have final decision making authority over educational issues while father may have final decision making authority over medical issues.  Parallel parenting is intended for parties who cannot co-parent and who do not have an especially strong or co-operative working relationship.  I am rather cautious before recommending parallel parenting as it is a concept that is relatively untested on a long terms basis and in the end I wonder whether we can really divide a child’s life into such airtight sections and divide them between mother and father.

I cannot conclude this brief summary of child custody varieties without what is probably the number 1 or number 2 misconception that I encounter with new family law clients.  There seems to be a belief that at age 12 (or some other magic age) a child decides with whom he or she wishes to live.  Children do not make the decision whether at age 12 or otherwise.  Custody and indeed access issues are decided according to a child’s “best interests”.  Their views or preferences if independent and consistent can be an important factor especially as they get older.  Other important considerations include their age and stage of development, their relationship with each parent in the past and on a go forward basis, the extent to which each parent has participated in their upbringing, the ability and willingness of the parent, any special challenges or difficulties (e.g., mental health issues, anger, addiction issues), any special needs of the child and the ability of the parent to meet those needs and a host of other considerations.  A 5 year old’s wishes, even if they can be reliably determined, would not play much of a role in determining custody. 

For many children, their wishes may become more important as they reach 11 or 12 years of age.  On the other hand, the wishes of a 15 or 16 year old teenager would carry very much weight.

A final note:  one parent’s case for custody does not involve painting the other parent as a “unfit mother” or “unfit father”.  That idea comes more from movies and TV shows and has no place in our legal system.  In fact, the degree of willingness to encourage and foster a good relationship with the other parent with reasonable contact is often the most overlooked factor in determining custody issues.