How are decisions made about custody of the children?
Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.
If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.
- The best interests of the children come first.
- Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
- The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors including:
- Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
- The parent-child relationship and bonding.
- Parenting abilities.
- The parents’ mental, physical and emotional health.
- The parents’ and the child’s schedules.
- Support systems (for example, help and involvement from grandparents and other close relatives).
- Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
- The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)