Brahm Siegel on Joint Child Custody

In recent years I’ve noticed a big change in clients. Simply put, I see a lot less fighting these days about sole versus joint custody than I used to. Why?

In sole custody, or “custody” (they mean the same thing), one parent has all the decision-making power in relation to the child — specifically, decisions about health, education and religion. In joint custody, both parents have the same power, regardless of the time-sharing arrangements.

Joint custody is not for everyone. It requires both parents to co-operate on issues relating to their children. They are not required to love each other or even be nice to each other. But, if they are able to agree on basic issues such as what religion the children will follow, whether their schooling will be public or private, or whether or not they should receive a particular medication or treatment, they will be considered good candidates for joint custody.

Many folks I meet at first believe there is a legal bias or “presumption” in favour of joint custody. Others believe the mother “always” gets sole custody. Neither view is correct. Here is my take on it:

1. Fathers are, in general, far more involved in their children’s lives now than they were in my father’s day and, as a result, are better qualified to make major decisions about their children’s lives. Mothers know this and often agree to joint custody without a battle on the issue;

2. The more sophisticated and well-heeled a family, the more likely a court will strongly encourage the parties and their lawyers to try joint custody, especially on a temporary basis. The thinking from the bench, it seems, is that the more educated a couple, the more insight they will have into their actions and the less likely they will fight about children’s issues. Temporary agreements or court orders on joint custody tend to lead to permanent or “final” ones;

3. There are far greater resources available today for parents to help work through difficult issues that stand in the way of an agreement on joint custody, such as mediators, collaborative family lawyers or parenting coaches. The increasing use of mediators, parenting co-ordinators and collaborative family law are alternative dispute resolution mechanisms to address issues that arise after the final settlement is signed, and these parties often keep things from blowing up into an all-out war in court;

4. Judges and lawyers know that an order or sole custody often minimizes one parent, usually the father, and so as much as possible they encourage joint custody as a way to promote a strong “buy-in” from both sides on taking responsibility for their actions. In practice, a parent who is being asked to pay a lot of money in child support is often less angry (no client I’ve ever met is pleased to pay child support) if joint custody is put on the table up front and without a battle; and

5. Joint custody has little to do with time-sharing between parents. Although the “child’s best interests” include many considerations, the key ones that determine time-sharing are which parent has been the primary caregiver and what have the parenting arrangements been since separation. The status quo is a very powerful factor that often cements unofficial or “temporary” plans.

Brahm Siegel is a partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters. Brahm has experience in all aspects of divorce and family law and devotes much of his time to assisting clients with custody and access dispute. He can be reached at (416) 222-6980. View his firm’s Divorce Magazine profile and website.

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