March 23, 2010
By Brad Smith
Custody of a child is determined according to the best interests of the child. Factors considered in determining the best interests of a child include:
- the love, affection and emotional ties between the child and parent
- the age, views and preferences of the child
- the length of time the child has lived in a stable home environment
- the ability and willingness of the parent to provide for the child
- any plans for the care of the child
- the permanence and stability of the family unit.
The weight given to each factor will depend on the circumstances of each case.
Custody may take different forms. A person with sole custody of a child has the right to the day to day care and control of the child and the entitlement to make all decisions regarding the health, education and welfare of the child. The non-custodial parent, or access parent, has the right to make inquiries and to be advised with respect to the health, education and welfare of the child. The non-custodial parent may request information but has no right to participate in the major decisions affecting the child.
If the parents have joint custody, both parents may participate in all decisions regarding the health, education and welfare of the child. The child may spend an equal amount of time with each parent but generally the child will continue to spend the majority of his or her time with one parent and that parent would continue to exercise the day-to-day care and control of the child.
To make joint custody feasible, the parents must be able to discuss and cooperate to a significant extent on issues affecting the children. A court may not wish to grant an order for joint custody unless the parents consent to the order.
Shared custody permits the parents to share the custody of the child. The time the child spends with each parent is intended to be approximately equal. Each parent should play a similar or equal role in the decisions that affect the child.
Access can also vary. Access may be described as reasonable access on reasonable notice and effectively left to the discretion of the parents. Alternatively, access may be restricted or very specific by stating the date and time of each access. The circumstances or wishes of the parties will govern.
If the parents cannot decide the appropriate custody or access, it may be beneficial to obtain an assessment of the child and parents by a qualified professional. The assessment would report on the needs of the child and the ability and willingness of each parent to provide for those needs. Such an assessment may have significant weight with a Court. The expense of the assessment may be ordered by the Court to be shared by each parent.
Another option is to request the court to appoint the Children’s Lawyer. If the Children’s Lawyer is appointed, the lawyer effectively represents the child or children and may conduct an interview of the child or children, and possibly the parents, and report to the Court. The report will provide either the recommendations of the Children’s Lawyer with respect to the best interests of the children or report on the wishes of the children.