CHILD CUSTODY DURING DIVORCE OR SEPARATION
Some of the most difficult decisions to make following a separation are those involving children. Included in these decisions are: who has custody, will you share custody or not, and, what will be the access rights – visiting rights. If the parents do not agree on custody and access rights, then, the Court will decide. Judges will essentially consider what is in the best interest of the child and evaluate the parental capacity of each parent. Depending on the age and maturity of the child, the Court will also consider the child’s desire and preference.
Clear and convincing advocacy by our lawyers will protect your child custody concerns and lead to a Court decision that is in the best interest of the child.
THE DIFFERENT CHILD CUSTODY OPTIONS IN QUEBEC
During a separation or divorce, several options are available to parents to organize child care in a manner adapted to their situation.
In general, parents opt for either sole custody or shared custody. Although there are a multitude of other options that parents can choose to exercise regarding sharing their parenting time with their child, we will discuss the two forms of parenting (or custody) time most often exercised. These are shared custody and sole custody.
1. Shared custody
Joint custody, where both parents share responsibility for the child equally, is a common option. Custody is considered shared when one parent spends at least 40% of the parenting time with the child. When the parents have adequate parental capacity, provide a stable living environment, demonstrate an ability to cooperate and have homes nearby, the court tends, if custody is contested, to grant shared custody. This option most often involves alternating one week with each parent.
2. Sole custody
It is also possible to opt for sole custody for one of the parents. In practice, this generally means that the child resides exclusively with one parent and that the other parent exercises access rights (or parenting time) with the child every other weekend. For vacations and public holidays, this parent may also have additional parenting time (for example, two weeks during the summer and five days at Christmas). Access rights can also be extended.
Child custody decisions
The best interests of the child remain the primary priority in all custody decisions during a separation. Depending on the child’s age, the court could also take into account the wishes expressed by the child for custody options. It is recommended that you consult a family law attorney for legal advice and recommendations tailored to your specific situation.
Example of a contested case: what form of custody and visitation rights should be granted?
One year after their separation, the husband files for joint custody, but the wife is disputing it. The court must analyze the different forms of child custody in relation to the criteria specified by the Court of Appeal, including the stability of the child, the capacity of the parents to communicate and the absence of conflict.
FAMILY MEDIATION
Family mediation is often encouraged by the court to help parents reach an agreement on child custody. This process allows parents to work together with the help of a neutral mediator to find solutions that meet their child’s needs, while avoiding legal disputes.