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Child Custody Decisions
1. What is child custody?
We talk about “custody” when a judge decides which parent a child will live with. The parent with custody is the one who lives with the child. This parent makes daily decisions and looks after the child most of the time.
But a parent is still a parent, even if he or she doesn’t live full-time with a child. Both parents have a duty to take care of their children and must educate, supervise, house and feed them, and ensure their health and safety. This collection of rights and duties is called “parental authority”. The parent without custody still has an important role and must always be consulted on important decisions affecting a child. What is an important decision? Here are some examples:
Regardless of who has custody, both parents can consult report cards, meet teachers, have access to information about the child’s medical care, etc.
But a parent is still a parent, even if he or she doesn’t live full-time with a child. Both parents have a duty to take care of their children and must educate, supervise, house and feed them, and ensure their health and safety. This collection of rights and duties is called “parental authority”. The parent without custody still has an important role and must always be consulted on important decisions affecting a child. What is an important decision? Here are some examples:
- Choice of school
- Choice of religious practices
- Agreeing to medical care
Regardless of who has custody, both parents can consult report cards, meet teachers, have access to information about the child’s medical care, etc.
2. What could a judge decide in Caitlin’s case?
Custody can be granted to one parent (known as “sole custody”) or both parents (known as “joint custody”).
Even when one parent has sole custody, the other parent has the right to see the child. The law says that a child must have as much contact with both parents as is in the child’s best interests. A judge will try to find an arrangement that respects the child’s interests. For example, in Caitlin’s case, if the father is granted sole custody, the mother could have access on the weekends and during holidays. Sometimes judges cannot grant joint custody. This could be the case when the mother and father live too far away from each other. | The Convention says... The Convention says a child should have regular contact with both parents as much as possible, even if the parents don’t live in the same city or country. Some exceptions exist, such as when one parent is aggressive or negligent toward the child. Read Article 9 of the Convention. |
3. How will a judge decide which parent will have custody?
| When a child has a father and mother, the law considers that the child needs both of them. Custody can therefore be awarded to either parent. The most important factor when deciding who gets custody is the child’s best interests. The child’s best interests are evaluated in light of the circumstances and what is best for the child’s personal development. “Best interests” does not mean what the child wants most or what a parent wants most. This may seem vague, since a child’s interests vary from one child to another. In child custody cases, judges consider these criteria: For example, even if a 15-year-old child wants to live with her mother, her father will be granted sole custody during the week if the mother is an alcoholic and this prevents her from taking care of her daughter. On the other hand, custody might be granted to the mother if a child has learning disabilities and the father works evenings. The mother is more able to help the child with homework during the week. | The Convention says... The Convention says that, when a decision is made about a child, the child’s best interests always take priority. Read Article 3 of the Convention. |
4. Should the judge let a child decide who to live with?
| A child old enough to express herself has a right to take part in decisions about custody. The judge must listen to her and consider her wishes. However, the final decision must always be in the child’s best interests. If a child wants something that is not in her best interests, the judge does not have to follow the child’s wishes. For example, a child might want to live with her father because he is less strict than her mother and lets her do whatever she wants. Is this in the child’s best interests? Not necessarily. For example, a child might have difficulty at school if a parent doesn’t supervise homework. This is not in the child’s best interests. There is no specific age at which a child is old enough to give an opinion. It depends on each child. Clearly, a two-year-old child can’t make this kind of decision; it will be up to the adults or a judge to decide. But a judge will consider the wishes of a child about eight years of age and up. The wishes of a child 12 years of age and older will be seriously considered and, depending on the circumstances, might be the deciding factor. At 15, Caitlin is old enough to have an impact on the decision. | The Convention says... The Convention is clear: not only can a child express her wishes, but she must be listened to. This is one of the Convention’s important principles and is called the child’s right of participation. The goal is to make sure children and teenagers participate and express their opinions as much as possible when important decisions are taken, as in Caitlin’s case. Read Article 12 of the Convention. |
5. Will Caitlin’s Aboriginal heritage be a factor in the judge’s decision?
| Ancestral Aboriginal traditions are recognized and protected in Canada. An ancestral tradition is a custom or an activity that has been part of an Aboriginal community for a very long time. For example, Aboriginal fishing and hunting rights have been recognized as ancestral traditions and are legally protected. Despite this, cultural heritage is not the most important factor in custody matters. But judges can consider it, among other factors. For example, imagine Caitlin goes on a fishing trip with her uncles during the fall school vacation, and is very proud of this ancient Aboriginal tradition. The judge could try to make sure Caitlin is with her father at this time of the year. | The Convention says... The Convention says that an Indigenous (Aboriginal) child, or a child belonging to an ethnic, religious or linguistic minority, has the right to enjoy her own culture, practice her own religion, and use her own language with members of the same group. The countries agreed that Aboriginal youth worldwide should have the chance to practice their traditions and respect their values with members of the same group. Read Article 30 of the Convention. |
Points to Consider
Now you know more about the rights of children and teenagers when it comes to custody decisions during a divorce. Consider the following issues when answering the contest question:
- Should the wishes of children and teenagers always be respected?
- Do you think Caitlin’s wishes should be respected in the circumstances?
- Would your answer be the same if Caitlin was seven years old?
- Should Caitlin’s Aboriginal heritage influence the judge’s decision?
- What factors are the most important when making a custody decision in Caitlin’s case?
Links toward Éducaloi’s Website
Child Custody :www.educaloi.qc.ca/en/loi/parents/334/
Custody and the Child’s Wishes:
www.educaloi.qc.ca/en/loi/parents/207/
External Links
World Programme of Action for Indigenous Youth:www.ohchr.org/Documents/Publications/GuideIPleaflet9en.pdf
Aboriginal Canada Portal:
http://www.aboriginalcanada.gc.ca/
