Parenting After Separation: How is custody decided?

How does a judge decide where your child will live?

If you are applying for custody or access, you will need to demonstrate how your child’s best interests will be furthered by the arrangement.  Even if you and your co-parent have agreed a plan for custody and access, a judge is required by law to consider whether it is appropriate for your child if your matter is in court for any reason.   In this post, University of Ottawa law student and Fresh Legal summer intern, Kayla Sanger, explains what the court considers when making decisions about parenting.

There is no ‘one size fits’ all approach to determining issues of custody or access.

The Children’s Law Reform Act contains a list of factors the court will consider when determining whether an application for custody or access is in the child’s best interests:

  • The child’s connections (love, affection, emotional ties) with people entitled to or claiming custody or access
  • The ability of each applicant to provide the child with guidance, education, and the necessaries of life 
  • Whether the child has any special needs and the ability of each applicant to meet those needs
  • What the child would prefer, if it is possible to ascertain.  At times, The Office of the Children's Lawyer is appointed to help with this.
  • How long the child has lived in a stable home environment
  • The permanence and stability of each family unit with which it is proposed the child will live
  • The plan for the child’s upbringing as proposed by each applicant
  • The ability of each party applying to act as a parent 
  • In some situations, such as violence or abuse, an applicant’s past conduct will be considered
  • Any other information a court deems relevant to making a decision

If your family is restructuring in the wake of a separation, you should contact a family law lawyer as soon as possible.  Questions around custody and access are often accompanied by questions about support and property division.  Your lawyer can help you understand your rights and obligations, as well as connect you with other professionals who may be able to help.  

If you have questions or comments about this post, please start a conversation with us on Twitter @freshstartott and @klasanger.

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