All About Custody

 Helping parents agree on or litigate parenting arrangements is one of the more difficult challenges in family law. Often the first challenge is trying to define all the terminology. Parents will say they want "full custody" or "primary care" but may not understand what that really means. Different jurisdictions use different terms to mean the same thing. 

And to further complicate matters, the Divorce Act was recently amended to remove the use of the words "custody" and "access". Now, Judges grant orders for "parental decision-making responsibility" and "parenting time".

The Divorce Act does not apply to parents who were not married to each other, so in Manitoba those parents can still ask Judges for sole or joint custody. 

Here are a few of the most common terms used in Manitoba:

1. Joint custody - This means that parents will continue to have an obligation to discuss major decisions concerning the child, although the child may live with one parent more than the other. When it comes to education, medical issues and religion, both parents will have input. Both parents have the right to get information from schools, doctors, dentists, counsellors etc. One parent cannot change the child's last name without the other's consent. Joint custody is extremely common.

2. Primary care and control - When parents have joint custody, but the child lives with one parent most of the time. That parent will have "primary care and control" and is usually allowed to make the normal day-to-day decisions for the child.

3. Sole custody - Opposite of joint custody, the parent with whom the child does not primary live does not automatically have access to records and would not have input into major decision. Sole custody is granted by courts generally in cases where the parents never lived together, live in different provinces or even countries, and/or have an extremely high-conflict relationship. Sole custody is becoming less and less common.

4. Shared custody - This is when the child spends approximately equal time with each parent. No one has primary care. Parents usually have joint and shared custody in these cases. One parent does not have more say than the other, and they have to find a way to work out any disputes.

5. Parental decision-making responsibility - parents can agree, or a Judge can decide, about how major decisions will be made. Do both parents have to agree on choice of school, medical treatments, enrolment in counseling, religious upbringing, travel etc? Or will one parent have exclusive decision making about one or all of these areas and otherwise they have to agree? Or will each parent have exclusive decision-making authority for one or more of the areas?

6. Parenting time - Judges will just simply specify when each parent will be with the child; Monday morning to Friday after school, every second weekend, every Tuesday and Wednesday etc. Unlike with custody orders, this phrase - parenting time - sounds more neutral and less like one parent has won.

Some families have slightly varied versions of these. Such as joint custody, with one parent having the final say in the event of a disagreement. Or sole custody with the non-custodial parent having specific rights to report cards or doctors reports.

Judges are somewhat limited in their creativity and will need to choose the labels in the legislation. However parents who agree to mediate or settle out of court can be very creative and flexible in coming up with a basic time sharing schedule and some basic ground rules for co-parenting.