Understanding Child Custody; Rights and Obligations
Child custody and the rights and obligations associated with child custody are often misunderstood. The legal term “child custody” actually refers to decision-making rights and not strictly speaking the child’s actual residence. We often refer to the two colloquially, though custody and residency are actually distinct. It is nevertheless common that the parent who is awarded child custody decision-making rights is also often the parent with whom the child lives.
This blogpost addresses the basics of child custody. If you are having child custody issues, you should consult Richmond Hill family lawyer Elliot Starer.
What is Child Custody?
Child custody refers to the right to decide important matters impacting how to raise and care for a child. The main examples of important decisions that are covered by child custody include where the child will live and how the child is raised, such as selecting the school and other educational programs like tutoring, extra-curricular activities like soccer or music lessons. Other areas of important decisions are those related to health care, religion and religious instruction. It is possible for one parent to have child custody and the other parent to nevertheless have equal access time.
Joint custody is the default that exists and it is most common type of custody as it is often in the best interest of the child. This means that both parents have the right to make major decisions together, such as the child’s school or healthcare. Joint custody requires the coordination of the parents and will not be awarded where the parties cannot agree.
In Cheeseman v. Warder, 2015 ONCJ 759 (CanLII), the mother had primary custody of the child and the father had scheduled visitation rights. A requirement of the agreement was that the mother remain in the Waterloo region. When she unilaterally relocated to Manitoulin Island with her daughter. The father brought a motion that she be ordered to return to the Waterloo region and the parties be awarded joint custody. The mother brought a motion for an order that she could retain custody of the child and the father only had visitation rights.
The court ordered that the child be returned to her father in Waterloo and that if the mother relocated back to Waterloo, she would retain primary custody of the child and the father would retain his visitation rights.
When relationships are unhealthy and the parties are unable to agree due to high conflict or living to far apart or where one parent is incapable due to health or other reasons, the parents may opt for one parent to have sole custody or the court may order it. Sole custody means one parent makes the key decisions about the child’s care and how he or she is raised.
In situations when a judge considers sole custody because joint custody is not working well, the parent with custody may still be required to consult with the other parent.
In Heuer v. Heuer, 2016 ONCJ 201 (CanLII), both parents were seeking sole custody of their son Connor. They had joint custody and Connor was not doing well under the stress, both parents thought sole custody would be preferable. The mother, Ms. Heuer struggled with mental health problems including prescription drug addiction and borderline personality disorder.
Ms. Heuer was found to be unable to put Connor’s interests before her own in part due to her prescription drug addiction and custody was awarded to the father Mr. Heuer. Even with Ms. Heuer’s history and judge’s awarding of sole custody, there were some caveats included in the judgment.
These caveats include the following:
- Mr. Heuer will still have to consult Ms. Heuer before making all major decisions affecting Connor’s health, education, religion, upbringing and extracurricular activities;
- The parties will have the same rights to make inquiries and be given information as to Connor’s health, education, religion and welfare; and
- The mother will have access rights and the parties shall share holidays.
While child custody is often described in extremes – joint custody or sole custody – as the cases above demonstrate, it is often more of a spectrum. In cases where sole custody is awarded there are often requirements of consultation, access and visitation. In cases where joint custody is awarded there can still be a differentiation in parents’ rights and responsibilities.
Split custody is very seldom awarded by Ontario courts. It refers to situations where there are multiple children of the marriage and one parent is awarded custody over one or more of the children and the other parent is awarded custody over the other child or children of the marriage.
It is rarely seen as in the best interests of the children to have split custody, but there are some circumstances where it may be awarded such as a large age gap in the siblings, different interests of the children and different connections with each parent.
Let Elliot Starer Help You With Child Custody Matters
If you are undergoing a separation, we can protect your child custody rights and help you consider your options along with the many other family law issues that need to be resolved. Our Thornhill law firm services Toronto and the GTA, including Richmond Hill.
A well-rounded family lawyer with tremendous experience is what you need when you have a custody dispute. Contact Elliot Starer, with nearly 40 years legal experience, at 905-764-0074.