How Do Judges Decide Which Parent Gets Custody of a Child?

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When parents cannot agree on how they are going to raise their children after separation,  judges or arbitrators have to decide which parent should have custody.  That is unfortunate because judges usually have a very limited amount of time to spend with the family.  They may not see the children at all, and yet the judge is making critical decisions about the rest of the children’s lives.  It is almost always better for the parents to decide what plan will work best for their children because they know the children and themselves better than a judge will ever likely get to know them.  Arbitrators can sometimes get to know families a little bit better, especially when they act in the role of mediator/arbitrator.  But still, their knowledge of the family will never be as good as that of the parents. 


When deciding which parent should have custody, judges and arbitrators give almost no weight, perhaps no weight at all, to what the parents want.  The law requires that when a judge or arbitrator makes a decision in relation to a child, the only thing that matters is what is in the best interest of the child.  That is often obvious, but sometimes it requires a greater analysis. 


When the court must undertake a full analysis of what is in the best interest of a child, there are certain specific factors that it looks at.  First are the love, affection and emotional ties between the child and each of the people claiming custody to the child, usually the parents, other members of the child’s family who reside with the child, most commonly the child’s siblings, and persons involved in the child’s care and upbringing, such as extended family, friends or maybe even professional caregivers, teachers or healthcare providers. 


Another factor that the judge must consider is the child’s view and preferences, if they can be reasonably ascertained.  This means that the child must be making a clear statement of what he or she wants.  It is not up to the parents to go and try to elicit this from the child.  This child’s opinion must be on that the child developed on his or her own.  For more on what role a child’s views and preferences play in child custody cases, watch this one minute video on the role of children in divorce:


Yet another factor that must be considered is the length of time that the child has spent in a stable home environment.  This can be an important factor in custody and access cases because what the court looks at is where has the child been living, for how long had they been living there, and have things been working out.  So if a child has been living in one place for a period of time, and everything has gone well, the court is reluctant to change things for the child.  The situation in which the child is living is often called the “status quo”.   Judges are very reluctant to change the “status quo” if things have been going on well.  Further, the longer things have been going on well, the more reluctant judges are to change them. 


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Judges must also consider the ability of each of the parents to provide for the child.  Judges look at which parent can best provide the basic necessities of life, and also provide education and guidance for the child.  Where a child has special needs and one parent can provide for those special needs better than the other, that is another important factor that the judge takes into account. 


To take into account all of the above considerations, each parent has to put together a plan for how he or she is going to care for the child. Judges, when considering who should have custody, also consider the plans that each parent puts forward.  So when a parent is going before a judge to decide who has custody, he or she should have a plan that addresses all the considerations described above. 


Judges are also required to consider the permanence and stability of the family unit in which it is proposed that the child lives.  So a parent who has a transient lifestyle, or who has a number of partners going in and out of their life, will have a harder time getting custody. 


Judges also care about each parent’s ability to act as a parent generally.  Judges frequently think that someone cannot act as a good parent if that person cannot support the children’s relationship with the other parent.  To find out more about this factor, and how being unsupported of your ex’s parenting can cause you to lose custody, listen to the radio segment below:



Finally, the court is also required to consider the child’s relationship by blood, meaning DNA, or through an adoption order between the child and the people who are applying for custody.  This gives biologic or adoptive parents a slight advantage over other people who are not as closely related to the child. 


Judges are also specifically required to consider the issue of domestic violence.  If a parent has exposed a child to domestic violence, then that parent will have a much harder time getting custody of the child, possibly even getting time with the child. 


Note, that in all these factors the judges and arbitrators are required to consider in custody access cases, what a parent wants is not one of them.  A parent’s schedule, or financial circumstances, or other needs are not factors that the judge must take into account.  All that is important is what is in the child’s best interest.  In court, parents should be focussing on their child’s best interests.  However, often when parents are in family court on custody or access issues, they have not given any thought to their child’s interests at all.


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7 - Custody of the Children - what it means and how it is decided

17 - Sole Custody, Joint Custody, Shared Custody- How do Judges Decide?

To hear more about how judges decide child custody cases, you may want to listen to this podcast.  It also explains what the term custody actually means.  The legal meaning for “child custody” is quite different than some people think, so you may want to hear about that to decide what is really important in your relationship with the children. Once you listen to that podcast, for an even more in-depth discussion of parenting choices after separation, listen to this podcast.  That second podcast goes more in-depth into the differences between sole custody, joint custody, split custody, shared parenting and parallel parenting.  It includes a discussion of the written laws and court decisions that set out the factors judges use to determine which type of child custody situation will be best.


Also, judges do not care what people say about the above issues, they care about what people can prove about the children and the children's needs - and who is the best parents.  You need evidence to prove your case.  If you can't prove what you think, what you think does not matter.  Watch this video about proving your case in family court.


In addition, the case may just be about who gets custody, but what type of custody.  To understand the different types of custody orders, and when they are appropriate, watch the following video:

 

Also, check out this page for information and tips regarding children in separation and divorce.


If you and your spouse are working out the parenting of your children after separation, without going to court, then you are probably coming up with a better plan for your kids that a judge could figure out with limited knowledge of your family and you are likely really helping you kids by keeping them away from the conflict that is associated with Family Court.  Still, if you want your “parenting plan” to stand up of time, then you need to follow the rules for creating legal and enforceable separation agreements, which you can find out about by listening to this podcast, or watching this video, or reading the excellent book on Ontario Family Law, described below.


For more information on the law as it relates to child custody, the family court process, and the alternatives to family court, get a copy of this easy-to-understand book on Ontario Family Law. The paperback version is available from Amazon and the $9.99 ebook is available for Kindle, Kobo, and from iTunes for iPad, IPhone and Mac.. It also includes several tips on how to get the best possible result for you and your kids. 

Book - Guide to the Basics of Ontario Family Law


However, the best way to protect your kids, and your relationship with them, is to see a good family lawyer who has lot of experience in child custody and access cases.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John, call 416-446-5947, email him, or fill out the form below. You can use the same form to comment on this page. 

 

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Guide to the Basics of Ontario Family Law Available on Kindle
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You can add your comments on this page using the comments section at the very bottom.

COMMENTS:

Scott D:

Thanks for this page! It gives me a better understanding of the courts and what they are looking for! I've been frustrated for 2 years now and only seeing my son for 4 days a months has taken it's toll on me! I have a good (not great)lawyer now and I've given him lots of ammunition to fight for me. I pray that I get a judge who sees the big picture! Once again, Thanks!

Gary Direnfeld, MSW, RSW:

I wonder if parents appreciate though that the judge often relies upon information provided by parents either directly or indirectly through assessments/evaluations. In view of that, parents who seek redress through court are apt to trash each other to then position them self as the more deserving or better parent. This is tragic for the child who must live through the carnage and aftermath. Perhaps we need to do more to inform parents of the harm imposed through the court process to more encourage participation and utilization of services such as Collaborative Practice and Mediation.

Hazel Wright, Partner, Family law, Hunters Solicitors :

In England, we have the Children Act 1989, and under it, when a court has to make Child Arrangements (under the Child Arrangements Programme which has now replaced the language of custody, visitation, residence and contact). The judge has to apply the :The Welfare Checklist - section 1. Among the things the court must consider are:

a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);

b) His physical, emotional and/or educational needs;

c) The likely effect on him of any change in his circumstances;

d) His age, sex, background and any characteristics of his, which the court considers relevant;

e) Any harm which he has suffered or is at risk of suffering;

f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.


© John P. Schuman 2012-2017