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How Does the Court Decide Who Gets Custody?

July 9, 2019

A child custody battle can make the already frustrating and overwhelming process of separating from a partner even more stressful. If you are in the middle of a custody battle, you may be wondering how the matter will be decided & what child custody lawyer can do to help.

Here are some factors that may determine the outcome of the case:

Who is the primary caregiver?

When a court must make a ruling on child custody, one of the main factors they will consider is which parent is the primary caregiver. The main caregiver is the one who handles most of the tasks for raising the child. Depending on the age of the child, these tasks may include bathing, grooming, meal preparation, making healthcare decisions, teaching necessary skills like reading and writing, assisting with homework, and scheduling and participating in leisure activities. However, being the main caregiver is not only about doing specific tasks. Usually, the primary caregiver has a stronger emotional bond as a result of spending more time with the child.

The best interest of the child

The court will always make a decision that is in the best interest of the child when deciding on a custody matter. This means that the parents’ preferences will carry less weight than the happiness or physical, mental and emotional well-being of the child. To determine what is in the child’s best interest, the court will consider the child’s unique needs, the physical and mental health of the parents, parents’ stability, evidence of substance abuse, other members of each parent’s household with whom the child must interact and how the child will adjust to a new community if they will need to move in order to live with either parent.

Typically, children cannot decide which parent they want to live with, but if they are over a certain age, they may be allowed to testify in the custody matter. If this is allowed, their wishes may be considered in the court ruling.

Types of child custody

Using the above criteria, the court may decide on any of the following types of child custody:

  • Joint custody

Joint custody refers to a shared legal responsibility for a child. Having joint custody does not necessarily mean that the child will live with both parents. In a joint-custody arrangement, the child may live with one parent; however, that parent must include the other when making decisions about how to raise and care for the child.

  • Shared custody

Shared custody is an arrangement in which the child will live with both parents. When parents have shared custody, the child must live with each of them at least 40% of the time.

  • Sole custody

There are times when the court determines that it is in the best interest of the child that one parent maintains sole custody. Sole custody means that the child will live with one parent and that parent can make decisions about how they will raise and care for that child without any input from the other parent. The parent who does not have custody may still have access to the child through a visitation arrangement.

Do you need a child custody lawyer?

If you are in the middle of a custody battle, you may want to consult a child custody lawyer.

Not all child custody matters must be decided in court. If you and your former partner can agree on how you will co-parent, a child custody lawyer can guide you through the process of creating your own custody agreement. Creating your own custody is the least stressful and most affordable way to resolve the matter. If you and the other parent cannot agree, and you must take the matter to court, your child custody lawyer will represent you and ensure that all your parental rights are protected.

If you are searching for a child custody lawyer in Toronto, contact us today at Baker and Baker Family Law. With over 90 years of combined experience, our child custody lawyers are in a strong position to help.

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