Child Custody Issues for Unmarried Parents

A child born outside marriage is the same as a child born to a legally married couple. In the eyes of the Canadian law, child support is the right of a child, and parents, whether married or not, are legally accountable for the financial support of their kids.

If both parents can come to an understanding about how much child support is appropriate, they have the option to create their own agreement. They can also turn to the court for a decision.

When it comes to child custody and access issues for unmarried parents, the situation becomes a bit complicated.

The Definition of Child Custody and Parental Rights

Custody is the right and responsibility to take care of a child and make important decisions that affect the child’s upbringing, such as schooling, religion, medical decisions, and all the day–to–day decisions concerning the child. The custodial parent reserves the right to make decisions without seeking permission from the other parent. Unless otherwise ordered by the courts, both parents have joint legal custody if they resided together after the birth of the child, regardless of their marriage status.

Parents who are not married may come into an agreement where one of them assumes sole custody or they may agree to take joint custody of the child. Opting for joint custody does not require the child to live with each parent an equal amount of time. If either the unmarried mother or father disputes paternity, they both have the option to request a court order to establish paternity.

According to Canadian custody laws, a parent or any other person such as a relative or friend may apply to the courts for custody of a child. (Canada’s custody laws consist of both the federal Divorce Act and provincial custody legislation.) The courts look at the applicant’s settled intention to parent and take good care of the child; for example, a person who has played an important role in a child’s life and acted as a parent, but is not the biological father or mother, may apply for access or custody of the child. The main purpose of the court is to provide a stable and loving environment for the child.

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Types of Custodial Arrangements in Ontario

• Sole custody
• Joint custody
• Shared custody
• Split custody

The main distinguishing factors between the different types of custody arrangements is the residence of the child concerned, and the decision making rights of the parents or guardians. In a sole custody, the child lives permanently with the custodial parent, who makes all the important decisions concerning the child’s welfare, without seeking approval from the other parent. In a joint custody arrangement, both parents have the right to make decisions concerning the child, and the residency arrangements vary. A shared custody arrangement allows each parent to spend equal time with the child, while a split custody arrangement allows the parents to split the kids between them, depending on the age of the kids concerned.

Unmarried Fathers’ Rights

The judge is unlikely to alter the custody arrangement provided the parent is a capable caregiver. In the case of unmarried parents, whether the child’s birth certificate contains the father’s name or not does not affect the child custody rights of the father. Unless the well-being of the child is at risk, the courts prefer to leave the child with the parent who already has custody.

Some of the issues that might affect the decision of the court include the relationship of the child with either parent, the person who cared for the child, the living arrangements and support system of the parent seeking custody, the mental, emotional, and physical condition of the parent, the wishes of the child and many other issues. A judge may also order a home study to get a complete picture of each parent and the living condition the child will experience.

The act stipulates that the preferences and views of the child must apply where possible; therefore, the judge may ask the older or more mature children to choose the parent they would prefer to live with. Whenever there is a change in circumstances, the courts may alter the terms of child custody upon application by a parent.

Child custody cases for unmarried parents can get complicated. If you are looking for a family lawyer in Toronto, give our law firm a call and watch your life turn around!