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What is custody and who gets custody?

Child custody means having the legal right to make major decisions about how to care for and raise your child. Custody is not about who your child lives with or how much time your child spends with each of you.

For example, even if you have custody and are the only one who can make decisions about your child, your child might live equal amounts of time with you and your partner. Or, your child might live mainly with you, but you and your partner have joint custody and share decision-making.

The parent with custody has the right to make important decisions about:

  • education
  • medical care
  • religion

There are different kinds of custody arrangements that say who can make these kinds of major decisions. The most common are joint custody and sole custody.

Joint custody means that both parents together make these major decisions about their child's life.

Sole custody means that one parent makes these major decisions about their child's life and the other parent is told about the decision that was made.

In some cases, other people might get custody, such as a step-parent, grandparent, or other relative. Or, it could be someone outside the family who has a close relationship with the child.

If you and your partner agree on custody arrangements, you can put what you've agreed on in an agreement.

If you can't agree, you can ask a family law professional like a mediator to help you work out an agreement. Or, you can go to court and ask a judge to decide. The judge uses a legal test called the best interests of the child to make decisions about custody, access, and parenting.

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1. Think about the kind of custody arrangement you want

Think about what is best for your child and the kind of custody arrangement that will work best for your family. Keep in mind how well you get along with your partner, and who should be responsible for making major decisions.

The parent with custody has the right to make important decisions about:

  • education, like which school the child goes to
  • medical care, like which doctor the child goes to
  • religion, like whether the child follows a religion and which one

A joint custody arrangement means that both parents together make these major decisions about their child's life.

For joint custody to work, you and your partner have to get along well enough and have similar ideas about what is best for your child in terms of school, health, and religion. Joint custody usually doesn't work where there has been a history of partner abuse. 

If you and your partner don't get along, or have very different ideas on parenting, you may want sole custody.

A sole custody arrangement means that one parent makes these major decisions about their child's life and the other parent is told about the decision that was made. The parent with sole custody may choose to get the other parent's opinion when making decisions or may be required by a court order to do so. But, the parent with sole custody gets to make the final decision.

You can also think about dividing major decision-making responsibilities between you and your partner. For example, you may agree that your partner makes decisions about your child's medical care and religion while you make decisions about your child’s education.

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

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2. Talk to your partner

You and your partner can try to agree on custody and access without going to court. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.

Some of the things you have to decide on are:

  • who makes major decisions about your child
  • who your child lives with
  • whether one of you has to pay child support and how much child support
  • how to discuss things to avoid conflicts
  • how to get information about your child from third parties like doctors and teachers
  • how to deal with changes in the future

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

If you agree on issues related to your children, you can make a parenting plan. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement.

Your parenting plan or separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

Talking to your partner may not be an option where there is a history of partner abuse. 

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3. Get help from a family law professional

If you and your partner cannot agree on custody and access, you can try getting help from a family law professional. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law

All of these processes are sometimes called alternative dispute resolution (ADR). They help solve your issues without going to court. Deciding which process is best for you depends on the facts of your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.

Some of the reasons to use ADR instead of going to court are:

  • You have more control over what happens to your case.
  • It can be faster and cheaper.
  • It can be less stressful.
  • It takes place in a private setting.

But, there are some situations where it may be better not to use ADR, such as:

  • There is a history of family violence, mental illness, or drug abuse.
  • You can't talk to your partner.
  • You can't work cooperatively with your partner.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on each person's income. You can use this service whether or not you're in court. If you're already in court, you can get up to 2 hours of mediation at the court free of charge.

In some areas, Legal Aid Ontario has a mediation service that is free if you or your partner's income is low enough. These mediators help with issues of custody, access, parenting plans, travel and vacation plans, parent communication, and child support.

You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.

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4. Go to court

If you and your partner still cannot agree on custody and access even with the help of a family law professional, or if this is not the right option for you, one of you will have to start a family law court case.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues. This family law court process flowchart explains each step in a family law court case.

A judge looks at the facts of your situation and the best interests of the child test to make decisions about custody, access, and parenting. Judges usually assume it's better for a child to have a relationship with both parents after they separate or divorce.

Some of the things a judge looks at are:

  • the relationship between each parent and the child
  • the emotional ties between each parent and the child
  • how long the child has lived in a stable environment
  • each parent's plan for the child's care and upbringing
  • each parent's ability to care for the child
  • in some cases, the child's views and wishes
  • if there has been abuse against any family member or any child

The judge doesn't look at the past behaviour of a parent unless it affects their ability to parent. For example, a judge won't consider which parent was responsible for breaking up the family. But the judge must consider if a parent was ever violent or abusive towards the other parent or children.

You can talk to a lawyer who can help you understand your rights and responsibilities toward your children, and help you through the process.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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Reviewed: 
September, 2015