For most people, the term “custody” brings about thoughts of who will see the children when and how much time each parent will see the children after a separation. In legal terms, “custody” has very little, if anything, to do with scheduling each parent’s time with the children. Custody, in the legal sense, refers to who makes the important decisions regarding the children.
I am often asked, “What are the important decisions?” The major decisions include decisions related to the children’s health, education, religion and extra-curricular activities. The day-to-day decisions involving the children, such as what they will wear and eat, are typically made by the parent who is caring for the children on that particular day. The major decisions, however, are made by the parent or parents with custody.
Until a court order or a written agreement is made to the contrary, there is a presumption in law that both parents have custody of the children. Both parents are presumed to start off on an equal footing once they separate (whether that is the reality or not is an entirely different issue!). Joint custody means that the parents are able to co-parent together to make major decisions about the children mutually.
Sole custody, on the other hand, involves only one parent making the important decisions about the children. In most cases, a court order or written agreement is necessary for one parent to have sole custody. In some cases, one parent may have what is called “de facto” custody, which means he or she may temporarily make the important decisions regarding the children solely, as a result of the other parent leaving the family or matrimonial home. One should not assume, however, that as a result of the other parent leaving, he or she has sole custody.
Shared and split custody scenarios, although using the word “custody”, really have less to do with the decision making for the children and more to do with the time each parent has with the children and the effect on child support. Shared custody, which is defined under section 9 of the Child Support Guidelines, is a situation when the children spend at least 40% of the time with each parent. Split custody, as defined under section 8 of the Child Support Guidelines, involves a situation when each parent or spouse has custody of one or more children (i.e. the children are split up between each parent). There are special rules that apply to these types of situations in terms of paying child support.
Determining custody is often much more complex than what I have outlined here. If you have recently separated and have children with your spouse, sorting out custody will likely be your main priority. For assistance with this, please consult with one of our family lawyers and we will be happy to help you determine what is best for your children and your family.