Custody, Joint Custody, Shared Custody – a Primer

For people separating from their spouse, there are no issues more difficult to address than the legal issues involving custody and access to children, especially if the separation involves high levels of conflict and acrimony. The terms ‘custody’ and ‘access’, however, are no longer used in family courts in many jurisdictions across the country. The term custody has been replaced by the term ‘decision-making’ and the term access has been replaced by the phrase ‘parenting time’. This change, it would seem, was likely made due to the impression that the term ‘custody’ somehow implied that the parent who was awarded ‘custody’ of the child or children was, somehow, the ‘better’ parent.

In family courts, howeve, the parent awarded ‘custody’ was the parent who was the primary caregiver to the children during the relationship. Accordingly, it was felt that the stigma that may have been ascribed, in the minds of some, to the parent who only had ‘access’ to the children would therefore be avoided. I am not entirely sure that these changes in terminology will be entirely satisfactory. Nevertheless, the term custody has been, as mentioned above, replaced by the phrase ‘decision-making’. For the purposes of this discussion, it may be more convenient to use the old terms of custody and access as those are the terms that most people are familiar with.

The term ‘custody’ was used to refer to the parent who would be clothed with the authority to make the major decisions that were required in the life of the child or children. Major decisions included the authority to make decisions in respect of religion, education and medical treatment. The primary residence of the child or children would, correspondingly, be with the parent who was awarded ‘custody’. The other parent would exercise ‘access’ to the children, usually every second week-end and other times in addition.

JOINT CUSTODY

The term ‘joint custody’ would refer to the circumstance where the parties could equally participate in making those major decisions. Accordingly, a custodial regime where joint custody would be exercised was typically one where there was an absence of conflict between the two parents, one where the parents could set aside their personal differences to make cooperative decisions about what was in the best interests of their children. Joint custody of children was, obviously, not workable where there was a high degree of conflict between the parents. A family court judge would not order joint custody in this set of circumstances. Nevertheless, even in a joint custody regime, the child or children would have their primary residence with one of the parents and, as above, the other parent would enjoy ‘access’. However, in certain circumstances, the parents would ‘share’ custody of the children as described below.

SHARED CUSTODY

A ‘shared custody’ regime was one where the child or children would live with both parents on ‘week about’ basis. Usually, this meant that the children would live with mom for a week and, at the end of that week, they would move to dad’s house and spend that week with dad or some variation thereof. The point here is that the child or children would spend roughly equal time with each parent. Decision-making would often be on the same basis as that of a ‘joint custody’ regime. That is to say, the major decisions required to be made in the lives of the children would be made cooperatively by both parents. Day-to-day decision-making would be made by the parent where the child resided for that week. There are circumstances where shared custody is not practical. For example, where one parent moved to a location some distance from the former family home would render a shared custody regime, in practical terms, unworkable.

Grant Edward Rayner*

If you are separating from your spouse in the Upper St. John River Valley of New Brunswick, call Langdon Law at 506.497.2560 for a consultation. Offices in Woodstock, Hartland, Florenceville-Bristol and Fredericton.

*Grant is a member of the Law Societies in New Brunswick and Ontario. In practice 41+ years.