Custody - what is it and who gets it?

Who gets custody of the children?

Many people come to us with a misunderstanding of what “custody” means.  In the family law context, custody does not refer to who the children will live with; it actually refers to decision-making for the children.

In “joint custody” situations, both parents have an equal say when it comes to major decisions that must be made regarding the children’s health, education, or general wellbeing.  The children may reside primarily with one parent, but when it comes to decision-making, each parent is equally involved.

In “sole custody” situations, one parent has authority to make all such major decisions and the other only has the right to access information about the children.  Sometimes there is a requirement for the sole custodial parent to consult with the other parent regarding major decisions, but he/she will have the final say.

On occasion, an arrangement called “parallel parenting” is entered into.  In this situation, decision-making authority is divided between the parents.  For example, Mom gets to make all major medical decisions while Dad makes all major decisions regarding education.

Major decisions are just that: major.  For example, whether to consent to elective surgeries, what school system to register the children in, or whether to take the children to a mental health specialist are all major decisions.  Things like haircuts, ear piercing, and the dinner menu are not major; the parent in whose care the children are in at the time can make those decisions.  We call these “day-to-day decisions”.

Simply disliking the other parent will not be enough to secure a sole custodial arrangement; there are a variety of factors that come into play.  The most important factor to be considered when deciding the best arrangement regarding decision-making is the best interests of the children and whether you will make decisions jointly or alone will depend on the particulars of your unique situation. 

In the vast majority of cases, the parents will make decisions together.  It is advisable to have a plan in place to deal with disputes that may arise in the future (i.e. to attend mediation if an agreement cannot be reached, or to follow the advice of the applicable professional).  Sometimes, though, sole decision-making authority is appropriate. 

We can assist you in determining whether your situation is better-suited for joint or sole custody.