Perhaps the biggest decision to be made during divorce proceedings is where the children will live. In the past, custody usually went to the mother by default, unless there was a compelling reason for the children to live with the father. That is no longer the case, and while this is certainly better for maintaining healthy and happy families, it can make custody decisions more difficult.
But who makes this decision: the parents or the children? In many cases, it’s both. According to Ontario family law, there is no specific age at which children can decide which parent they want to live with; however, the children’s preferences are certainly taken into consideration. The court will make the final decision based on a thorough examination of the children’s best interests and how their needs can be met.
What Are the Best Interests of the Child?
Every family is different, meaning that what’s best for one child may not be the best idea for another. According to the Department of Justice, the factors to look at include “children’s ages, special needs, relationships with the important people in their lives, the role of extended family, cultural issues, the history of the parenting of these children and the future plans for the children.” They’ll also take into account the children’s wishes about where they’d prefer to live, but this won’t necessarily be the deciding factor.
Another item for the court to consider is each spouse’s history of parenting and past conduct toward the child or children. This is an area in which the parents’ behaviour toward each other doesn’t usually make a difference in the final outcome. For example, adultery, while often devastating to a marriage, doesn’t necessarily make someone an unfit parent; however, drug use might. Only the actions and behaviours that directly affect the children will be taken into consideration by the court.
Canadian Custody Statistics at a Glance
Statistics are not a predictor of what your situation will turn out to be, but they’re worth looking at to get a sense of what the national trends are. The Department of Justice has compiled an extensive set of statistics on child custody arrangements at the point of separation and over time. There are a few points in particular to consider:
- Even though primary custody does not automatically default to the mother anymore, it’s still true that mothers still tend to be the custodial parents. The likelihood of this goes up the younger the children are when their parents separate.
- Exclusive custody for the mother happens much more frequently than exclusive custody for the father or shared custody.
Keep in mind that these statistics are just numbers; they do not reveal the practical or emotional reasons why people choose these arrangements, and they may or may not apply to you. However, they are useful for evaluating what tends to happen in custody situations.
Deciding On a Custody Agreement
The health and well-being of your children should be your foremost priority when you’re trying to figure out custody arrangements during a separation and divorce. Divorce is certainly hard on children, but as long as both parents keep the kids’ best interests at heart, everyone will be able to come out the other side healthy and happy with the new situation.
While weighing your options for custody agreements, keep these tips in mind:
- If you have teenagers, talk to your children about where they’d prefer to live, but be very careful not to pressure them one way or the other. The kids should never feel like they’re being made to choose between their parents. Don’t talk to younger children about this issue. They are too young to weigh the pros and cons.
- Speak honestly with your spouse about what arrangements will be best for your children. Enlist a mediator if necessary.
- Remember to make arrangements for holidays, summer vacations, and birthdays in addition to the day-to-day living situation.
- Take into consideration the following factors:
- Who has provided the care in the past?
- Who has the time to do it in the future?
- What are your child’s family ties with each parent?
- How can you maximize contact with both parents and minimize care done by babysitters?
- How can you provide stability and consistency for your children?
- Are there any cultural or religious factors you need to keep in mind and respect?
- Once you and your spouse have settled on an agreement, draw up a preliminary document to present to your lawyer. It’s much easier on both the spouses and the children to settle a custody agreement out of court.
- If you cannot reach an agreement, your lawyer can help you find the help you need. It maybe that a family professional (social worker or other mental health professional) can help. Perhaps mediation is a good idea. The collaborative practice process is another good way to resolve issues.
- Family Court is always an option. We try to keep our clients out of court but if you cannot resolve it amicably, we can help you through the court process. We represent clients regarding custody and access issues in Family Court all the time and have done so for many years. We know how to effectively advocate for you.
It is a good idea to have a detailed agreement or Family Court order as to when your child is with each parent but remember you need to be flexible and open to changes that make sense for your child’s sake. For example, if a special occasion arises with your spouse that would be great for your kids (eg. family reunion, tickets to the Raptors, trip to Florida, etc.) but it falls on your time with them, make a trade of time so that the kids can still go and you get “make up time”. If it is best for your kids, do it.
The best way to show your love for your children during this process is to respect what’s best for them, even if that means giving primary custody to your spouse or sharing custody. No matter what preference your child expresses regarding which parent they’d like to live with, it’s very important not to react negatively. Ensure that your children feel that they can trust you to listen to them and accept their feelings, even if that means enlisting the help of a professional to help them figure out and express what they want.
Keep in mind as well that what the kids want may not actually be in their best interests. For example, if you offer your child a choice between ice cream or broccoli for dinner, they’re going to choose the ice cream! But that doesn’t necessarily mean it’s what they’ll get. It’s up to the parents to decide on the healthiest option.
The Emotional Benefits of Divorce
This can be hard to believe, but if the divorce and custody proceedings are handled well, it can actually be beneficial for the children involved. They’ll learn resilience and adaptability, and they’ll have the chance to see their parents at their best – plus, once the dust has settled, they’ll no longer be living with the tension of unhappily married parents. The process will be difficult, there’s no getting around that, but the end result will be a happier and healthier family.
We have numerous article about child related issues on our website. Reading more will help you make better decisions.
When you’re going through the dissolution of a marriage, the emotional toll can make it very difficult to remember all of the details that need to be taken care of. The family lawyers at Galbraith Family Law are here to help you make sure that everything gets done, including coming up with the custody arrangement that is most beneficial to your children. We’ll get to know your specific situation and help you make tough choices. To get in touch with us, fill out the contact form on our website or give us a call. If you live in the Newmarket area, call (289) 802-2433; if you’re in Barrie, call (705) 302-1102.