Should you get custody of the child?
Part 2
Last week’s article defined custody and shed some light on the key factors the Court will consider when determining which parent should have the physical control of the child on a daily basis; being the parent with whom the child resides. When persons apply, they are usually asking the court to grant them one of two types of custody; either sole custody, or joint custody. Understanding how each custody translates in real life is important as many parents make wrong assumptions of the rights and obligations associated with each.
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 on a daily basis usually makes decisions regarding the day-to-day issues surrounding the child.
Joint Custody versus Sole Custody
Having assessed the circumstances of the child’s life, the Court then has to decide whether there should be joint, or sole custody. As usual, the Court will consider all the circumstances.
Joint Custody
Joint custody exists when the child lives with one parent, and the other parent is granted a right of access. Often times, the parent with whom the child lives may decide to make major decisions such as which school a child attends without the input of the other parent. The reason for doing so is sometimes out of malice, or simply that the non-residential parent comes off as being deliberately difficult. While engaging with the non-residential parent may be unpleasant, where there is joint custody, both parents are equally entitled to be involved in making major decisions on matters such as education, medical care and religion.
Sole Custody
As with joint custody, the child lives with one parent, and the other parent has access to the child. It is often the perceived difficulty of peacefully engaging with the other parent which prompts either the current residential parent, or the non-residential parent to seek sole custody. The parent seeking sole custody is asking for permission to control decisions regarding the child’s education, medical care and religion. This is the difference between joint custody, and sole custody.
Since each parent is generally entitled to a say in the decision making of their child’s life, the parent seeking sole custody must be able to show why he, or she should be granted sole custody including how it is in the child’s best interest.
Communication issues
A minor child not being able to properly govern his, or her life no doubt needs the input of both parents with their unique perspective to ensure fully informed decisions are made. However, the Court knows effective communication between parents can be challenging, and a contentious relationship between the parents is certainly not in the best interest of a child. This means, in determining the type of custody to be granted, the Court will consider the ability of the parents to communicate with each other to make important decisions concerning their child.
Joint Custody
For joint custody to be granted, the Court will need evidence that the parents are able to communicate effectively, and make important decisions together. For the Court to make that conclusion the parents’ actions must have shown that they are reasonably mature, and able to communicate with each other. This is particularly important, since unexpected circumstances may arise which will require the parents to quickly make decisions instead of waiting for a Court to make the decision.
Sole Custody
Simply accusing one parent of being difficult to communicate with, or other negative descriptions is generally insufficient to prevent an order of joint custody from being made. The Court will consider whether the communication history shows that the parties do not have the level of maturity, and ability to communicate and work with each other in the best interest of the child. In many situations, the negative communications being relied on tend not to be specifically concerned with the child. In that situation, the Court recognizing the importance of both parents being involved in a child’s life, may consider whether joint custody will reinforce each parent’s importance, and encourage the parents to co-operate with each other, and focus their communication on matters specifically relating to the child.
Communication is not the only factor that the Court will consider when deciding which type of custody should be granted. As usual, the Court considers the entire circumstances of the specific child’s life.
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.