How does the Family Court decide which parent gets custody?
When parents cannot agree on how they will raise their children after divorce, judges have to decide which parent should have custody, care and control. This is not a good situation because judges may not know the parties and their children well enough, yet the judge is making critical decisions about the rest of the children’s lives.
It is always better for the parents to decide who the children should live with as part of the divorce agreement. After all, the parents know the children better than a judge will ever likely have the opportunity to do so.
Unfortunately, in some cases, parents are adamant that the other parent is not suitable to look after the children and cannot come to an amicable agreement.
When deciding which parent should have physical custody of the children, judges usually give no weight to what the parents want. This surprises a lot of clients. The law requires that the judge decide custody, care, and control issues based only on what is in the child’s best interest. This can be expressed in one simple principle:
What is in the best interests of the Child’s welfare, not parents’ wishes, is at the top of judges’ minds when deciding which parent should have care and control
Factors that judges will take into account will include:
- The love and emotional ties between the child and each of the parents.
- Each parent’s relationship with the child.
- Which parent was the primary caregiver for the child during the marriage?
- Where has the child been living? If a child has been living in one place for a period of time, and everything has gone well, the court is reluctant to change the status quo.
- If there is more than one child, the court will naturally try to keep the children together.
- A parent’s ability to spend time with the child.
- Whether one parent has been obstructing the relationship between the child and the other parent.
- The child’s wishes (if the child is mature enough to express a wish).
Family Court judges may also appoint a Child Representative or call for certain types of Reports to enable the judge to make an informed decision about custody battles.
The court may appoint a Child Representative in any action or proceeding involving a child or the custody or welfare.
A Child Representative is a third party individual appointed by the court to act in the child’s best interests. The decisions that the Child Representative makes will reflect what they think will benefit the child the most after observing the child. The Child Representative will not take into consideration what the parents want for themselves.
A Child Representative acts as the voice of the children in court.
Custody Evaluation Report (“CER”)
When there is a child custody dispute, the courts may ask the Ministry of Social and Family Development to conduct an investigation and produce a “Custody Evaluation Report” before deciding on custody matters.
The Custody Evaluation Report may contain the following information:
- Offer an objective insight into the matters concerning the child.
- How the child interacts with the parents.
- What the child wants.
- Represent the voice of the child in court.
- Investigate any allegations of ill-treatment by a parent against the child.
If you are facing a divorce and have children, it is advisable to seek professional guidance from a divorce lawyer.