How is custody of minor children usually handled in divorce cases?

September 9, 2021

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Divorce is a stressful and challenging process, not only for you but also for your children. Moreover, kids are not able to handle the loss of mutual parenting. Furthermore, it may also adversely affect their young minds and make them feel insecure and unloved. Kids need proper attention and care. Hence, keeping the child’s best interest in mind, an appropriate parenting plan should be made. This parenting plan will help them get the proper love and care that they need. 

There are various types of parenting plans. It is imperative to choose the best strategy. Hence, these plans are usually decided by the court. Furthermore, the court also takes care that the interests of the child are taken care of. The court will determine who will get custody of the minor child. 

This custody can be of various types like Sole Custody, Shared Custody, Joint Custody, or Split Custody. In sole custody, a single parent will get complete custody of the child. Moreover, that parent will have to take care of the child’s needs and will have the whole responsibility. While in shared, joint, and split custody, both parents will share the child’s custody. The duration of each parent’s custody time will be decided by the court. Scroll through the article to know about how custody of minor children is usually handled in divorce cases.

Custody Laws

Child custody is the right to make decisions on behalf of your child after divorce. The ‘Divorce Act’ of Canada decides who will get custody of the child. Also, these rules are applicable in every province and territory of Canada. Moreover, after March 1, 2021, there have been some changes in these laws. Custody is now referred to as “Decision Making and Parenting Time.”  Furthermore, this decision-making and parenting time is also of different types. Based on the arrangement, it can be shared, joint, sole, or split. 

Who gets custody of the minor child?

According to Canadian law, both parents have equal rights to the child. Therefore, there is no rule that only the mother or father will get custody of the child. Also, it does not depend on the child’s gender or age. As long as the child’s age is less than 18 years, only the court will give parents decision-making and parenting time rights or we can call Minor child custody

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Furthermore, the court has the full right to deny custody to one parent completely. This happens when the court feels that the child will not be safe with that parent. In some cases, parents mutually decide the custody of their children. If this is the case, then one should have all this documented carefully in proper legal documents. But if the matter goes to court, only the court will decide. Both parents will have to prove why they should get custody. The court will listen to both parents and then select. Also, if the child is more than 12 years of age, their choice will be respected. The court will ensure that the interests and needs of the child are fulfilled. Also, the court will make sure that the child gets the love and care of both parents in most cases. 

Is there a higher chance for a mother to get custody of a minor child?

According to law, both parents have equal rights over the child. Thus, there is no specific law that states that the mother should be given priority. But there are some basic presumptions that courts have. Firstly, if the mother is a homemaker, then she is given priority. This is because she will be available almost all the time. 

And, the court wants that the child to be with someone present around often with the child. This way, stay-at-home mothers get an edge in getting custody. Moreover, generally, mothers are the primary caregivers of the child. They take care of the child’s basic needs. So, this is also a good reason for the court to grant custody to the mother. But, at any point in time, the court feels that the child will be more happy and secure with the father, then the court will give custody to the father. Thus, in all cases, the child’s best interest will be the priority.

Factors determining the child’s custody

There are certain factors that the court will look at while deciding custody. Court wants not to be a lack love and attention towards the child after the divorce. Therefore, the court is very practical while determining custody rights. Also, both the parents are equal in front of the court. Moreover, the court will give chances to both the parents to explain why they should get custody of the child. In most cases, the court will try to provide shared control. Also, if there is more than one child, the court will try not to separate them. In addition, you can also check about how does child custody works in Canada.

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While determining the child’s custody, the court will consider factors like:-

  1. The relationship between the parent and child: Each parent’s relationship with the child will be considered. Moreover, the court will also see with whom the child’s bond is stronger. This will assure the court that the child will easily stay with that parent. The court will also check who was the primary caregiver of the child before the divorce.
  2. Both the parents’ physical and mental health: To properly take care of the child, a parent should be mentally and physically fit. A court may also check the medical records of the parents to check their health status. 
  3. The lifestyle of the parents: A child should get proper time and attention. A parent who stays at home will always get priority over a working parent—this way, the court ensures that the child will get appropriate attention and care.
  4. Financial Condition of the parents: A person should be financially stable and have a secured income source. Responsible parents should meet the financial requirements of the childlike school fees, health expenses, and other lifestyle expenses. 
  5. Many children: If the parents have more than one child, the court will keep them together. Therefore the court will give custody rights to the one who will take care of all of them.
  6. Relationship between the parents: The type of custody will depend on the parent’s relationship. If both parents are ready to take care of their children equally, the court will grant equal parenting time to both parents. Also, this is the best type of arrangement as the child will get love from both the parents. 
  7. Child’s unique needs: There can be some special needs of the child which can only be fulfilled by one of the parents. For example, a breastfeeding child needs to be with their mother only. So this way, if there are any child’s unique needs, the court’s decision will depend on that. 
  8. Child’s wish: if the child is equal to or more than 12 years of age, their want to live with one or the other parent is usually respected. The court appoints the Office of Children’s Lawyer’ to determine the child’s wishes.
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Other ways to decide on child custody

The matter of deciding on the child’s custody can also be solved without going to court. There are many ways to save yourself from the stressful and expensive procedure of the court. Some of the available options are:-

  1. Family Mediator: Family mediators are trained people who help in resolving family disputes outside the courts. Moreover, this is one of the most commonly used options. The mediator will work with both the parents and help decide the best possible parenting arrangements for you guys, keeping in mind the child’s best interest.
  2. Out-of-court parenting agreements: Both parents can hire separate lawyers. Lawyers can help you in understanding your legal rights and frame an out-of-court parenting agreement for you. 
  3. Collaborative Law process: A team of collaborative family lawyers can help you in negotiating a parenting agreement. A team of collaborative family lawyers will also have divorce coaches, child specialists, and financial specialists. Therefore, the team can very efficiently work with both of you collaboratively and help you decide on your personalized parenting agreement outside the court.
  4. Therapists: There are many specialized therapists available. So, you can meet family counselors, child psychologists, divorce coaches, or any other professionals. They can guide you in forming an agreement.
  5. Parent-Education Sessions: Courts in Canada will also conduct these sessions. In these sessions, parents are educated about divorce and separation and their effect on children.  

You should always try to solve family matters outside the court. Fighting for your child’s custody can make divorce more ugly. Moreover, it will also affect you and your child’s mental peace. However, in some cases, a court is the only option. In such cases, the judge will listen to both the parents and grant custody to the one they believe is in the children’s best interest.