Definition – Child Custody is defined as having care, control and responsibility for the well-being of a child.
Child custody can be:
- sole, which means that only one person is awarded custody of the child;
- joint, which means that more than one person, usually both of the child’s parents, share custody of the child, and have equal rights and responsibilities for the child;
- split, which is where the parties each have custody of a child of the marriage (For example, the mother has custody of the older child, who lives with her; and the father has custody of the younger child, who lives with him.);
- shared, in which the parents have joint custody, and the child lives for an equal length of time with each parent.
Child custody is a way of designating who has the right to make decisions on behalf of the child(ren). Just because the child(ren) live(s) with one parent on a day-to-day basis does not mean that the other parent does not have legal custody rights. A parent who does not have the children living with him or her on a regular basis, but has joint child custody is still entitled to have all parental rights, for example: receiving copies of their child’s report cards, to speak to teachers and/or doctors about their child, and to make decisions about whether or not the child should have surgery. If a parent does not have a legal child custody agreement, but has access rights to visitation with the child, they are entitled to all of the above information, they simply do not get to be involved in making the decisions.
The only way a parent can not have child custody is either if they agree to it in a separation agreement, or if a court orders that one parent not be granted child custody. The court begins by assuming that the parents should have joint custody, and if one person feels that it is not in the child’s best interests for the parents to have joint custody, then they must show why this is so. The responsibility is on the parent asking for sole custody to show why the other parent ought not to have any legal custody of the child.
Best Interest of the Child
When making a decision with regard to a child’s welfare, including custody, the court’s focus is on “the best interests of the child”. Every plan that involves the child must show how and why this is the best option for the child, otherwise it will not be considered. Concepts such as “fathers’ rights” or “mothers’ rights” are not a consideration; the parents’ rights are irrelevant. Child custody and child access, like child support, are the right of the child, not the parent. The child has the right to have as much contact with each parent as is consistent with the best interests of that child. The best interests of the child are determined by a number of factors, including:
- the love, affection & ties between the child and each person seeking custody or access;
- the ability and willingness of each person to encourage a relationship with the other person; and
- the permanence of the family unit that the child would live in.
What is felt to be in the best interests of the child is not based on any generalizations about custody and access, such as “Boys should be with their fathers and girls should be with their mothers” or “Very young children should always be with their mother.” Each child custody case must be decided based on the individual details of each case, and the evidence that has been presented in that case. This ensures that what is truly best for that particular child is what is ordered.
The Role of Office of The Children’s Lawyer (OCL)
In many cases, the child’s feelings or opinions may come up, and the court may decide that in order to fully consider the best interests of the child, it must hear what the child’s thoughts are on the matter. In this case, to protect the child as much as possible, rather than having the child testify or swear affidavits, an advocate is appointed to represent the child.
This role is fulfilled by the Office of the Children’s Lawyer, an office within the Attorney General’s office, whose responsibility is to represent minors in legal matters. Once the order is made for their appointment, a lawyer is assigned to be the child(ren)’s lawyer. That person will speak to the child to hear what he/she has to say, and will also speak with both of the parents. They will then produce a report that takes the child’s views into account (although the advocate may not necessarily agree that the child’s preferences are in his/her best interests, especially if the children are young).
Child’s Name Change
If one parent wishes to change a child’s name, they must have custody of the child, and must obtain the written consent of anyone else with custody of the child.