Who gets custody and why?
What is “custody”
If you are separating and have children, custody and visitation rights will probably be among the most important concerns. Custody legally means having care and control of children. Usually the children live all the time, or most of the time, with the parent who has custody. Sometimes one parent will have custody and sometimes parents will have what is called joint or shared custody. Parents with joint custody share in the important decisions about how the children are raised and may take turns having the children live with them. In recent years concepts have developed such as “split custody”, a situation where one or more children of the marriage remains with each parent. A parent who does not have custody will usually have rights to visit with the children at set times, and rights to inquire about the children. This is sometimes called “access”.
Agreements between spouses
In most circumstances the courts will not interfere with an agreement made by parents about custody and access. Whenever possible parents should try to reach an agreement they can both accept. Asking the courts to resolve custody disputes is usually expensive, unpredictable and emotionally draining.
How a court decides
If you and your spouse are unable to reach an agreement, you can have a court decide for you. The judge will decide who will get custody and visitation rights based on what the court thinks is in the best interests of the children. The court will consider the love, affection and emotional ties between the children and each parent, how well each parent can give the child guidance, education, and the necessaries of life and how long the child has lived in a stable home. In most cases, the parent who has custody of the children during the separation is more likely to get permanent custody of the children after the divorce. The court rarely disrupts the children’s home environment if they have settled into a steady and stable routine with one parent.
As part of the process of deciding what is in a child’s best interests, a court often orders an assessment by a professional such as a psychologist. The psychologist will usually meet with the children and parents several times to conduct tests and make observations. The psychologist will then make a recommendation to the judge as to which parent should get custody. The court usually takes these recommendations seriously so it is very important to actively participate in the assessment if one is ordered.
For some couples, the best possible option is joint custody. This can mean that the children live part of the time with each parent or that the children live with just one parent. When there is joint custody, both parents legally have care and control of the children. Because joint custody requires a lot of co-operation by both parents, there may be hesitancy on the part of the court in making an order if there is significant friction between the parents. Split custody is a variant of joint custody which usually requires the consent of both parents. Courts do not ordinarily order split custody without agreement as it is in the best interests of children to remain together.
Making decisions about custody of children can be very difficult. However, these decisions are extremely important. If you want to have custody of your children or access rights, you should consult with a lawyer.