When parents separates, the question of custody is often one of the most contentious issues. If the parents are not able to agree, then the Court may be asked to make a decision based on what is in the best interests of the child or children. The legislation says that the best interests of the child must be the paramount consideration in making any order affecting a child, including orders for custody, or a schedule of access or care and control.
Each case is different and will turn on in its own particular facts and circumstances. In some cases, the Court may request that an Assessment (often called a Home Study) be conducted to give the judge recommendations on who should have custody and what the schedule of care and control should be.
Usually, such assessments are carried out by a social worker or psychologist and involve observations of each parent interacting with their child as well as extensive background interviews with the parents and other important people in the child's life such as teachers, daycare providers and relatives. The recommendations in the Home Study are not binding on the Judge and may or may not be adopted by the Court at trial.
In deciding what is in the best interests of a particular child, a Judge making a custody or access order must consider a number of factors. The Family Maintenance Act sets out some of the things that the Court must consider including the following:
(a) the nature, quality and stability of the relationship between
(i) the child and each parent seeking custody or access, and
(ii) the child and other significant individuals in the child's life;
(b) the child's physical, psychological, educational, social, moral and emotional needs, including the need for stability, taking into consideration the child's age and stage of development;
(c) the impact on the child of any domestic violence, including consideration of
(i) the safety of the child and other family and household members who care for the child,
(ii) the child's general well-being,
(iii) whether the parent who perpetrated the domestic violence is able to care for and meet the needs of the child, and
(iv) the appropriateness of making an order that would require the parents to co-operate on issues affecting the child;
(d) the ability and willingness of each parent to communicate and co-operate on issues affecting the child;
(e) the willingness of each parent seeking custody to facilitate the relationship between the child and the other parent;
(f) any special needs of the child, including special needs for care, treatment or education;
(g) the proposed plan of care for the child, including the capacity of the parent seeking custody or access to provide a safe home, adequate food, clothing and medical care for the child;
(h) the history of the care arrangements for the child;
(i) the effect on the child of any disruption of the child's sense of continuity;
(j) the views and preferences of the child, where the court considers it appropriate to ascertain them;
(k) the child's cultural, linguistic, religious and spiritual upbringing and heritage.
The wishes of the child regarding custody are only to be considered if the court is satisfied that a child is able to understand the nature of the proceedings and the court considers that it would not be harmful to the child.
Each case will be decided on its own particular set of circumstances and there is no standard custody order or schedule. Each child deserves a customized solution which is in his or best interests, so while one child might benefit greatly from shared custody, such an arrangement might be completely inappropriate in another case.
This article is meant as a general overview of the factors that are relevant in child custody and does not constitute legal advice. For advice relaxant to your particular situation, please contact our office at (204) 677-2393.