How Is Child Custody Decided?

"Does the mother obtain child custody?"
Not necessarily. The person who has been the children’s primary caregiver usually obtains child custody.

"What does the court look at in deciding who gets child custody?"
The court decides child custody based on what is in the child’s best interests. In Ontario, Canada, the court will look at a number of factors in determining the child’s best interests, including:

  • each parent’s ability to provide for the child’s needs,

  • the relationship each parent has with the child,

  • your child’s wishes, if he or she is old enough,

  • if you have more than one child, the court normally prefers to keep them together,

  • the court will try to minimise the disruption of the child’s life (the status quo), and

  • who the primary caregiver of the child was during the marriage

  • time available to spend with the children (working hours, out of town trips)

  • one parent’s interference with the other parent’s relationship with the children

  • any special needs of the child.

A family law lawyer can help you evaluate how these factors apply to your circumstances, and what your chances of getting child custody are.

"What are the most important factors for child custody"
Officially, everything is important and all factors are considered.

However, from what I’ve seen, three factors tend to dominate. First, if there is a satisfactory status quo, it will be difficult to change that. Second, if one parent has been the primary caregiver during the marriage (for instance, a stay at home mom), this person is likely to get custody. Finally, it is a very rare situation where the courts will give custody of one child to one parent, and another child to another parent.

It is very rare for a step-parent to obtain custody, but it also seems to be rare for a step-parent even to ask for custody.

"Can I lose child custody even if I am a great parent?"
Yes! Normally, if child custody is disputed, in Ontario child custody will be awarded to only one parent. That is why it is so important to see a family lawyer as soon as possible if you have a child custody dispute.

"How do I obtain child custody?"
You can obtain child custody by agreement or by court order.

"Is it important to act quickly?"
Sometimes. For instance, if you believe that your spouse will abduct your children — or if you believe that your spouse will not return your children to you, you should act quickly.

"What about my spouse’s past conduct?"
Courts do not consider a person’s past conduct, unless it is relevant to the person’s ability to care for the children. Thus, things such as abuse of the children or drug use would be considered.


Bitter Child Custody Battles
Behrendt Law Chambers has represented many parents in bitter child custody battles.

Bitter Child Custody Dispute Over Infant
A client came to Behrendt Law Chambers when his wife left home with their nine-month-old daughter. Communication between him and his wife had broken down completely. His wife
wanted sole custody and was willing to let him see his daughter only three times per week, and then for only two to three hours per visit. Behrendt Law Chambers successfully won joint
custody for our client and access with his daughter three full days per week.

In another dispute, all communication between the parents of a 10 year old and 7 year old broke down. As well, the wife had charged Behrendt Law Chambers’ client with assault. Despite
this, We obtained joint custody for his client. As well, the mother wanted to move the children from a French-language school to an English-language school. We
ensured that the children were able to continue in the same French-language school they had been in.

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