Are you facing a child custody battle?
Whether or not you have legal representation, understanding what custody is and what the different types of custody are is crucial in preparing to determine the best custodial situation for your family.
When I got involved with lawyers and courts and custody, I had no idea what was what.
Is custody the same as visitation? Will they give my ex joint custody so long as he shows up? How is child custody determined?
It was a whirlwind of confusion until I found a lawyer who knew the family court systems and explained everything to me.
Knowing what custody was and how it was determined helped me better prepare for our custody battle.
(And, yes, it was quite a battle.)
If you’re about to take on custody in family court, I hope this guide helps you better prepare for it.
Even if your lawyer is taking the reigns in presenting evidence and information, you’ll find the whole ordeal far less stressful if you arm yourself with information.
What is Child Custody?
Custody, by definition, is the protective care or guardianship of a child.
When it comes to family court, it is the parental responsibility allocated to one parent or both parents.
There are two main types that most people are familiar with: sole custody and joint custody. Within those two terms, which I’ll explain more about below, are two additional concepts:
- Legal Custody. This involves who makes legal decisions on matters impacting the child such as education, healthcare, and religion.
- Physical Custody. This custody refers to who the child lives with and who provides their day-to-day care.
You’ll see how these two forms of custody work in both sole and joint custody situations:
The parent with sole custody possesses both legal and physical custody of the child. They are responsible for the everyday care of the child and legal decision-making on the child’s behalf.
Being the sole custodial parent DOES NOT mean that the parent has say over visitation or access with the other parent.
Despite having sole custody status, the parent is still expected to follow any court-ordered mandates regarding the other parent’s access to the child – failing to do so can result in being held in contempt of court.
With sole custody, however, the other (non-custodial) parent cannot make legal decisions that impact the child. Doing so would hold this parent in contempt of the court.
For example, the non-custodial parent cannot move the child from one school to the other or have their ears pierced without first consulting with the custodial parent.
When two parents have joint custody it means they both have say when it comes to making legal decisions on the child’s behalf.
This doesn’t mean that one parent can make a decision without conferring with the other parent. Both parents must discuss and agree to these decisions.
In a perfect world, separated parents would be agreeable and respectful and always make decisions for the benefit of their children.
However, we are human and oftentimes feelings and resentments get in the way. If there are instances where two parents with joint custody cannot come to an agreement, family court can help settle the dispute.
As with any custody, joint custody does not dictate visitation, access, or the child’s living arrangements.
You may hear the term “shared custody” used in reference to custody agreements, but this is really only used in the context of child support. Shared custody is often granted when a child lives at least 40% of the time with each parent.
Another term often synonymous with joint custody, split custody refers to situations in which the child lives with each parent more than 60% of the time. Again, the use of this term is typically for child support purposes.
Custody Versus Visitation and Access
Custody is often confused with terms such as “visitation” and “access”.
When my ex represented himself at our custody trial, he consistently expressed his concern that awarding me sole custody would eliminate his access to our daughter. The judge explained to him that even if I have sole custody, his visitation with our daughter would continue as normal.
Visitation, access, and living arrangements are all factors that should be detailed in a court order to be agreed upon by both parents.
In the simplest terms, visitation and access are merely the circumstances surrounding how and when the other person gets to physically interact with their child.
How is Child Custody Determined?
While the courts will take many factors into account when it comes to determining custody, they will always first consider what is in the best interest of the child.
The Best Interest of the Child
While there is no precise or legal definition of the “best interests of the child,” it is sufficient to say that the courts consider what parenting arrangement will best encourage the child’s development, happiness, and success.
First and foremost, the courts consider it beneficial for a child to have both parents present in their lives.
This does not mean that courts will initially grant 50-50 access and joint custody to separated parents. They will consider other factors to determine what kind of arrangement is more appropriate and best for the child.
Depending on the situation, the courts generally start small with the expectation of building up.
For example, because of his behaviors toward me during the pregnancy, my ex was granted weekly supervised access with our daughter in the beginning.
Eventually, we worked toward unsupervised access for two days a week. If he hadn’t stated in courts that he did not want overnight access, it would have gradually expanded to overnights.
The courts want to make decisions based on what is best for the child and they want to be fair to both parents. They want to give each parent a chance to be an important part of their child’s life.
Other Determining Factors:
- How well the parents can communicate with each other.
- The parent-child relationship.
- Respective parenting abilities.
- The mental, physical and emotional health of each parent.
- Support systems available to each parent.
- Care arrangements prior to separation.
- The child’s wishes. Once a child is 12, their wishes to live with one parent or the other are usually respected by the courts.
The past behavior of a parent is not be taken into consideration in a custody decision. However, any current and present behaviors that may have a negative impact on the child may be a determining factor.
Gaining or Not Gaining Custody
While seeking custody is not a game or competition, there are many factors that can help or hinder your desire to gain custody of your child.
Likely, if you are the day-to-day care provider of your child (and not a garbage human), you are going to retain custody in some form.
It is usually the other parent, the one with access and visitation, that can either gain custody through a joint arrangement or gain none when sole custody is granted to the other parent.
Here are some factors the courts take into consideration when determining if a parent is granted, or not granted, custody:
To Gain Custody
- A willingness to work with the other parent.
- Presenting yourself as a competent, loving, and involved parent.
- Avoiding a negative portrayal of your ex; Exhibiting neutral feelings toward your ex in front of the children.
- Taking your parental responsibilities seriously (i.e., child support, access schedules, etc.).
- Following court instructions.
- Living a clean and responsible life.
Factors That Will Determine No Custody
- Child abuse (physical, sexual, or emotional).
- Abduction of the child.
- Making false allegations toward the other parent.
- Neglect of the child while in your care.
- Domestic violence.
- Substance abuse.
- Violating a custody/access order.
- Poor co-parenting skills.
- Alienating, or attempting to alienate, the child from the other parent.
This article from Farzad Family Law in California details some of these instances with some great examples to give you a sense of how custody can be lost.
Creating a Custody Order
In a world of cupcakes and rainbows, two parents can come to a mutual agreement as to how they will work together to best raise their child.
Again, as I mentioned before, this is rarely the case. To avoid confusion and disagreements, it is best to have custody and access detailed in a court order.
While you can determine child custody without a court order, it’s not considered “official” by family court and cannot be enforced.
Custody orders are recommended if:
- you cannot agree to a custody or access arrangement;
- you need proof of custody (school, medical procedures, passports, etc.).
While it is possible to file for a custody order without a lawyer, I would definitely recommend at least speaking to one.
Depending on your income, you can apply for Legal Aid to cover your legal costs. Otherwise, most courthouses or family law centers have advice lawyers you can speak to for free.
Filing custody DIY involves filling out long and complicated forms. At the very least, see an advice lawyer to ensure your paperwork is filled out properly.
If you can hire a lawyer, or acquire one through Legal Aid, they will handle all this paperwork on your behalf.
Filing for Custody and Access
In Canada, there is something called the Family Law Rules and these are a series of required steps and forms necessary to file for custody and access.
If you are starting a claim, you need a general application and an affidavit in support of claim for custody or access. If you are responding to a claim, you need an answer form as well as an affidavit in support of claim for custody or access.
Your province’s or state’s website should have information and guides, as well as printable forms, to help you through the process of filing for custody. This page has a list of resources organized by provinces when it comes to child custody in Canada.
Tips for Filling Out Forms:
- read the form entirely before filling it out
- follow all instructions on the form
- if you are starting the case, you are the applicant
- if you are responding to the case, you are the respondent
- meet with an advice lawyer to make sure your forms are filled out properly
Preparing for Battle
When you think of custody hearings, think of it as a battle – not that you are looking to “win” but you must be prepared and able to anticipate your ex’s next moves.
You also need to understand what determines custody and act accordingly. During my entire custody hearing, my lawyer focused on how I was unable to communicate with my ex regarding our daughter.
I, thankfully, did not sink to my ex’s level of threats and harassment. Therefore, we were able to show the judge that while I remained civil and reasonable, he was unable to address or respond to concerns about our daughter in a rational way.
In the end, the judge determined that, due to the lack of being able to communicate on his part, we could not co-parent our daughter under a joint custody order.
Are you struggling with custody issues? Have you come out the other side? Let me know in the comments.
Any advice present in this article is not legal advice – you should seek the consult of a lawyer or legal professional.