Section 5.1: Types of Custody Arrangements

Child Custody Arrangements

After separation, parents must decide what type of custody most benefits their child. The Family Law Act only considers the child’s interests in custody decisions. There are different types of child custody arrangements. Joint legal guardianship often occurs even if one parent has primary residence rights. Family members and others are included in parenting plans where suitable. In some circumstances, sole custody may be more appropriate.

There’s a distinction between legal and physical custody when making custody arrangements. Legal custody covers parental responsibility over long-term decisions. Physical custody relates to living and care arrangements.

Sole Custody

What it means

Sole custody is legally referred to as sole parental responsibility. It involves one parent deciding major long-term issues affecting their children. These decisions can include the child’s education, cultural and religious upbringing and healthcare.

When it’s granted

The Court’s primary consideration is the child’s best interests. It can order sole responsibility if joint responsibility doesn’t benefit the child. Factors that may lead a court to grant sole parental responsibility include:

Evidence of Abuse or Neglect

One parent may have a history of violence, abuse, or neglect towards the child or another family member. The Family Court may determine that sole parental responsibility protects the child’s welfare.

Inability to Communicate

Parents may be unable to communicate about joint decisions on the child’s welfare. The Court may grant sole parental responsibility to ensure decisions are made promptly and conflict-free.

Physical Distance

In some cases, the parents live far apart. This makes joint decisions about day-to-day matters impractical. The Court may decide that sole parental responsibility is more practical.

Child’s Views

The Court may consider the child’s views and preferences. This depends on the child’s age and maturity. This is particularly true if the child strongly prefers to live with one parent and have them make decisions.

Joint Custody

In family law, joint or shared custody is equal shared parental responsibility. In joint custody arrangements, both parents share parental responsibility in long-term decisions.

Understanding shared parental responsibility

The Court considers shared responsibility to be the preferred child custody arrangement. After separation or divorce, co-parenting can be challenging. It’s crucial to develop ways to foster cooperation. Here are some key factors of healthy co-parenting.

Communication

Parents are expected to communicate with each other about these significant long-term issues. This communication should be respectful, transparent, and aimed at reaching a mutual decision. Above all, it should serve the best interests of the child.

Mutual Agreement

Decisions should be made jointly, meaning both parents agree on the outcome. This process may involve negotiation and compromise.

Written Agreements

Documenting decisions can be helpful, especially for significant matters like education and healthcare. This documentation can be informal, like an email or text message. It may also be more formal through child custody agreements like consent orders.

Flexibility and Good Faith

Successful joint decision-making requires flexibility, good faith, and a commitment to co-parenting cooperatively. Parents should focus on the well-being of their children above their personal differences.

Legal Custody vs Physical Custody

Legal custody and physical custody are the two essential elements of child custody.

Legal custody

Legal custody refers to the right and responsibility to make significant decisions on a child’s upbringing.

Legal custody can operate in different forms, including:

Sole Legal Custody

One parent has the exclusive right to make all significant decisions about the child’s life. The other parent may have visitation rights without the authority to decide major aspects of the child’s upbringing.

Joint Legal Custody

Both parents are responsible for making significant decisions about their child’s upbringing. Such an arrangement requires parents to collaborate on decisions affecting their child’s welfare. This holds even if the child primarily resides with one parent.

Legal custody considerations

Here are some key considerations when deciding on legal custody arrangements.

• History of Involvement. The Court considers each parent’s involvement in the child’s life. This includes who historically decided the child’s education, health care, and other matters.
• Child’s Needs. The specific needs of the child are carefully considered. The Court evaluates which parent is more likely to meet those needs through appropriate decision-making.
• Impact on the Child’s Well-being. The potential impact of legal custody on the child’s overall well-being is a primary concern. This includes their emotional and psychological health. The Court considers if shared decision-making supports or hinders the child’s development and happiness.
• Conflict Between Parents. The level of conflict between the parents is significant. High levels of conflict may lead the Court to question whether equal parental responsibility is viable.

Physical custody

On the other hand, physical custody deals with the child’s day-to-day living arrangements. This includes who the child lives with, who cares for them daily, and how their daily needs are met. Like legal custody, physical custody can be awarded as follows:

Sole Physical Custody

The child resides with one parent most of the time, providing a stable home environment. The non-custodial parent typically has visitation rights. This allows them to spend time with the child according to a schedule.

Joint Physical Custody

The child splits time between both parents’ homes. This arrangement requires careful planning and cooperation between the parents. This meets the child’s needs while accommodating child custody schedules and living arrangements.

Physical custody considerations

Physical custody has its own set of considerations. These may include the following.

• The Benefit of the Child Having a Meaningful Relationship with Both Parents. The Court considers the importance of the child having a strong and meaningful relationship with both parents. This is balanced with it being safe and in the child’s best interests to do so.
• Protecting the Child from Physical or Psychological Harm. The child’s safety is the overriding concern. The Court considers if there’s a risk of harm from contact with one parent due to abuse or neglect.
• Views Expressed by the Child. The child’s views and preferences on living arrangements and spending time with each parent may be considered. This depends on the child’s age and maturity.
• The Child’s Relationship with Each Parent and Other Significant Persons. The nature and quality of the child’s relationship with each parent and other significant individuals are essential.
• The Practicality of a Child Spending Time with a Parent. This considers how living arrangements affect the child’s ability to have a relationship with both parents. This is especially relevant if the parents live far apart.

Equal vs significant time

Equal time spent with both parents is the preferred arrangement in family law. However, this may not always be viable. In that case, the Court will consider substantial and significant time.

Substantial and significant time includes the following:

• Days that fall on weekends and holidays, and days that do not fall on weekends or holidays;
• Allows the parent to be involved in the child’s daily routine and occasions and events that are significant to the child;
• Allows the child to be involved in significant occasions and events for the parent.

Conclusion

Child custody can be organised in different ways. Spouses may opt for sole custody. This provides one parent with complete responsibility for raising their child. Joint custody imbues both parents with responsibility for a child’s long-term care. Various factors determine which option is in the child’s best interests.

Child custody can be broken down into two categories. Legal custody refers to long-term decision-making when raising a child. Physical custody relates to a child’s living arrangements and day-to-day care.