How The Court Determines Who Has Custody Of The Child And How Custody Is Divided

I often find that when individuals first meet with me they understand custody to mean where a child lives and who spends time with the child.

Custody is really about decision making. Joint custody means that the parents are equally responsible for making decisions about the child, his/her education, religious upbringing, medical care, etc. Sole custody means one parent is going to be making those decisions. In deciding custody, the court must decide what is in the child’s best interest, and basically the court considers any and all relevant factors. The court will look at the relationship between the parents and the child, the relationship between the parents themselves, and their ability to communicate. The parents can propose a plan and it will be evaluated as to whether the plan fosters a positive environment for the child and whether the plan fosters a positive continuing relationship with the other parent. Basically, anything that affects the means and needs of the child is going to be looked at.

Generally, if the parents are capable and if they have the ability to communicate effectively with one another about the child and provided that there is no power imbalance between the parties (no history of domestic violence or abuse), then joint custody is a real possibility. However, if the conflict or the differences between the parties is so great that the parties cannot communicate effectively concerning the child or if there is a power imbalance between the parties, then sole custody may be the only option.

Often when people come in they will say, “I want sole custody.” Once it is explained, they understand that the child can still live primarily with them and they realize that they prefer a joint custody relationship. They did not mean to exclude the other parent from the decision-making process; they just wanted the child to live primarily with them.


If you, or someone you care about, is dealing with family law issues in York Region, Durham Region or Toronto, contact Feldstein Family Law Group for a consultation.

This article is taken from a January 22, 2010 interview with Michael Wilson, Family Lawyer with Feldstein Family Law Group, a Toronto Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.