Custody is basically the decision making power over a child. This decision making power can apply to anything from the books they are reading to the school they attend. Access, on the other hand, deals with the right to be with the child. A custodial parent will gain access to the child through their custody, but a non-custodial parent must have an access agreement. When a couple separates, and they have children, they will have to make decisions on both access and custody.
Traditionally, custody arrangements have been broken down into sole custody, joint custody and shared custody. As the name suggests, sole custody is when one parent has custody and joint custody is when both parents have custody. Joint custody is generally only awarded when the parents still communicate well. There is also the option of having shared custody. This is where a child lives at least 40% of the time with each parent. Shared custody works well when both parents want joint legal and physical custody of a child. The parents must be able to communicate in order for shared custody to work. In cases when there is a high level of conflict, the court has typically resolved custody through a sole custody order. The rationale is that where parents cannot work collaboratively for the child’s best interests, it is better to give sole discretion to one parent. Increasingly though, the court has turned to a another option, parallel parenting, to resolve custody disputes.
Parallel parenting is similar to joint custody and shared custody in that both parents have custodial powers. However, parallel parenting orders tend to carve out specific spheres for exercising the rights and responsibilities that each parent enjoys. This type of custody arrangement is becoming increasingly common in cases where traditional joint custody or shared custody would not work because of communication problems and sole custody is not appropriate.
The case of Bushell v Griffiths[i] is very useful for showing when and how the court will order parallel parenting. In that case, the mother had sole custody initially but she used her position to deny the father the agreed upon access. The relationship between the parents was characterized by a high degree of distrust, disrespect, and conflict. Sole custody with the mother had not work, largely because of her own disruptive behavior. Equally, sole custody with the father was not an option because he had never been the sole care provider. He was also supportive of a shared or joint arrangement, provided his access was protected. Finally, the lack of effective communication between the parents meant that a traditional joint custody scenario would not work. In the judge’s opinion, the best interests of the child could only be served by a parallel parenting regime. In the end, the judge ordered that the parents share custody and imposed 22 specific orders regarding the day to day physical care of the child. The parallel parenting regime imposed very strict timelines for when the child had to be in each parent’s care. The idea is that specific orders from the court will prevent the mother from denying the father the access he is legally entitled to.
The use of parallel parenting by the court is on the rise in high conflict divorces. The court’s concern is always with the best interests of the child, with the recognition that, when it is appropriate, it is in the child’s best interest to have a relationship with both parents.
The very word “custody” has been abandoned in some jurisdictions as too emotionally loaded. The better focus is on residence, time division and responsibility.
Custody issues are often emotionally charged and difficult to resolve. The lawyers at Dale Streiman Law LLP have decades of experience dealing with sole custody, joint custody, shared custody and parallel parenting scenarios. They can help you resolve your custody issues efficiently with an eye to what’s in everyone’s best interest.
[i] Bushell v Griffiths, 2013 NSSC 68 available at http://www.canlii.org/en/ns/nssc/doc/2013/2013nssc68/2013nssc68.htm l