How Does The Judge Determine The Child Custody Percentage?

One of the most important family matters to come to an agreement on when getting a divorce is how you and the other parent will share the parenting of your children. Sometimes parents are able to come to a decision together. Otherwise, a judge must decide.

Definition of Custody

Contrary to popular belief, having “custody” of a child does not necessarily mean that the child spends the greatest percentage of their time with you. A child may live with one parent most of the time although both parents have custody. “Custody” refers to the right to make important decisions regarding the child’s upbringing and welfare. However, if only one parent has custody, the child will usually live with that parent all or most of the time.

Aspects of the child’s care that the parent who has custody can make decisions about include:

• Religion
• Education
• Legal name
• Health care
• Place of residence

Types of Custody

Either one or both parents may have custody of a child. In the latter situation, referred to as “joint custody,” the parents share the right to make decisions about the care of the child. In cases of “sole custody,” where only one parent has custody of a child, the other parent usually has “access,” or the right to spend time with the child.

The Federal Child Support Guidelines refer to three types of child custody arrangements:

• Shared custody
• Sole custody
• Split custody

“Shared custody” means that the child lives with each parent for at least 40 percent of the time over the course of a year. With “sole custody,” the child lives with one parent for more than 60 percent of the time in a year. “Split custody” occurs when there are at least two children and each parent has custody of one or more of them, meaning that they live with the parent for over 60 percent of the time in a year.

The type of arrangement is used to identify the paying parent. It also affects the amount paid.

Determination of Custody

The sole consideration of the judge when making decisions about custody is the best interests of the child. Determining the best interests of the child is a strict legal test, and the factors that the judge will consult include:

• The relationship between each parent and child
• The parenting abilities of each parent
• The ability of each parent to provide for the child
• The plans of each parent for the child’s care and upbringing
• In the case of older children, what the child wants
• Any family violence
• The already existing arrangements

One factor a judge may not look at when determining custody is the parent’s past conduct, unless that conduct is relevant to his or her ability to act as a parent.

Types of Access

In the case of sole custody, the parents or a judge must come to a decision about access. Access orders may be open and flexible or specific and strict.

• Reasonable access. An open and flexible arrangement. This type of access allows parents to easily change the arrangement if the situation changes but is difficult to enforce.
• Fixed or limited access. The order sets out the terms of the access visits.
• Graduated access. Allows the child to get to know the access parent.
• Supervised access. Used when there are concerns for the safety of the child and/or a parent.

You may be refused access to your children by a court if it is feared that you will physically or emotionally harm the children or the parent with custody or, you will not return the children to the parent with custody.

If you and your spouse can’t come to an agreement about the custody of your kids, the best thing to do is hire a child custody lawyer who will go over all your legal options. 

A family law attorney should be able to answer any questions you may have. The Toronto divorce lawyers at Fine & Associates are well experienced and are here to help you through your trials.