Should you be granted custody?
Part 1
In our previous articles we highlighted considerations in the granting of maintenance orders by the Court. We made reference to the residential parent; the parent who has the physical control of the child on a daily basis. Many persons mistakenly consider that to be the only aspect of custody.
So, what is custody?
Custody refers to the authority to control the life of the child including determining religion, education, and as well as physical control. The parent with the physical control of the child usually makes decisions regarding the day-to-day issues surrounding the child.
Who is entitled to custody?
The default position is that each parent is entitled to the custody of his, or her child. Our law confirms this by allowing either father, or mother to apply to the Court to modify this default position. The parent making the application is often asking the Court to approve him, or her as the parent who will have the physical control of the child on a daily basis; the parent with whom the child resides.
Right to access
After deciding whether the father, or mother will have the day-to-day physical care and control of the child, the Court will consider the terms on which the other parent will be granted access to the child. This includes deciding how often (e.g., every weekend), and when (e.g., during school holidays) the child will be in the physical care of the other parent including overnight stays.
The parent who is not selected to have the physical care and control of the child on a daily basis should not automatically be considered bad parent. The process of determining which parent should play this role involves a consideration of the specific circumstances of the lives of the father, mother, and the child.
Key considerations
In making its decision the Court is concerned with the welfare of the child, the conduct of the parents, and the wishes of the father and mother. The welfare of the child is the most important consideration.
Welfare of the child
Oftentimes persons assume the parent who is better off financially is automatically the more suitable parent to have the day-to-day control of the child. This is not so since what is best for the child’s welfare is not limited to finances, and the physical comfort that can be provided with those finances. Determining what is best for the child involves a consideration of the entire circumstances of the child’s life such as:
- age, whether boy, or girl
- physical, emotional and educational needs
- the likely effect of a change in living situation
- capability of each parent to meet the needs
There have been situations where the Court has found that both parents can adequately meet the needs of the child and relied on the fact of one parent having consistently been the primary care giver to determine who should have day to day physical control.
Conduct of the parents
Undoubtedly, the conduct of the mother, and father is important. Unfortunately, many parents decide to seek assistance from the Court when the relationship between them has already become unpleasant. The Court then hears accusations of one parent only seeking custody to be malicious, having not spent time with the child, or even paying maintenance. On the other hand, there are situations where the parents make unfavourable statements against each other but the Court being focused on the welfare of the child is able to assess the relevance of the accusations being made and may very well conclude that as it pertains to the child, neither parent is particularly worse, or better than the other.
Wishes of the parents
Parents no doubt being entitled by default to the custody of their child, the wishes of the father and mother are important. Parents base their requests for physical custody on various desires. Consideration of the wishes of the parent include assessing: why one parent is now of the view that he, or she should have day to day physical control, or whether the desire of one parent to relocate, including overseas, is genuine and not malicious.
In our next article, we will continue to highlight considerations in custody cases.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.