SHARED CUSTODY - BILL C-560

Recently Bill C-560 was proposed in Parliament to amend the Divorce Act. If passed, the Bill would require shared custody of a child as a presumption in all family law cases.  The Bill proposed a parenting structure in which both parents share custody of their child and the child reside with both parents equally unless one party proves that a different arrangement is in the child’s best interests.

This Bill did not pass.    

What is Shared Custody?

Shared custody is a parenting arrangement in which both parents continue to make decisions about their child together, and the child resides with each parent equally.

What are the alternatives to Shared Custody?

In a Sole Custody arrangement one parent has the right to make major decisions for the child.  In appropriate cases, the custodial parent will consult with the non-custodial parent and involve him or her in decisions.  But the final word is with the custodial parent. (The non-custodial parent may challenge any decision in court). Generally the custodial parent provides the primary residence for the child and the non-custodial parent has access with the child on a regular weekly schedule.

Custody may be granted to the parents jointly.  In this scenario, parents make major decisions for their child in consultation with each other.  One parent usually provides the primary residence for the child and a parenting schedule is established to set out when the child is in each parent’s care.

The Law of Custody

In determining which parenting arrangement is best suited for a particular family, the court and law focuses on the best interests of the child.  A judge will consider all of the surrounding circumstances in making a unique decision which is in the best interests of the particular child or children in a particular family.  Which parent historically made the major decisions for the child?  Are the parents able to communicate positively to reach decisions together for the child? Which household provides the most social stability for the child?  

The law recognizes that a child benefits from maximum contact with each parent and, based on this principle, the court creates a parenting plan best suited to the child in the particular family.

It is the child’s right to be cared for by his or her parents in the best possible way following a separation.  Custody of the child is not a parental “right”.  Parenting in a responsibility not a right.

The Debate

From time to time, the debate arises as to whether a particular custody arrangement should be preferred as a general rule.

The proponents of Bill C-560 argued that shared custody should be the standard custody arrangement and the starting point of the analysis.  Shared custody, in their view, is fair to parents generally and other custody arrangements should be the exception to the rule.   

This is why Bill C-560 failed.  It proposed to change the analysis from the best interest of the child in each particular family - the child’s right - to one based on their idea of what arrangement is generally fair to parents. The examination of the best interests of the child would have been secondary and a matter to be proven by a parent who did not agree with shared custody.  The presumption that shared custody is appropriate in most circumstances would have limited a full review of the particular facts in the family – and made it more difficult to achieve a parenting arrangement best suited for the child in each case.       

The law continues to focus on maximizing the benefits to the child in formulating post-separation parenting arrangements.

Is Shared Custody best for your family

In many separated families, shared custody is the best plan for the child. If the child will benefit from living in both households equally, if the parents share a vision for their child, if they trust the other to live up to his or her responsibilities to parent the child then there is a foundation for shared custody. Both parents must have patience and tolerate the other’s parenting style.   The parenting schedule should be stable and predictable for the child and allow the child to thrive.

Practical matters are important when considering shared parenting.  Are the households located close to the child’s school?  Can each parent commit to shared custody on a long term basis – does one parent travel for work? Will each parent commit to involving the children in activities? Commitments may change with the passage of time.

Shared custody arrangements can be challenging. Often the good intentions and patience which initiated shared custody dissolve over time.  Legal intervention may be necessary to establish a new plan.

Conclusion

Shared custody may or may not be the best arrangement in your circumstances.  You need a lawyer who can make a skilled argument on your behalf which is focused on the current law.

Prepared by Nadine Kenneth of Faith kenneth Lawyers

Nadine can be reached at +1(209)2481559