One of the most important issues for parents when they separate is how their separation will affect their children. Upon separation, the ideal situation will always be for parents to reach an agreement on parenting issues. If you are unable to reach an agreement regarding parenting, either parent can apply to the court to have the issues decided. In all cases, the court will decide parenting issues based on what is in the best interests of the children. Every case will be decided on its own particular facts; however, there are a number of guiding factors in our law to assist the Court in determining what is in the best interest of the children.

Emotions generally run high between spouses during separation and when communication is low, an experienced family lawyer can assist you in attempting to negotiate a parenting schedule with your spouse. If a parenting schedule cannot be reached and it is necessary to have the matter decided by a court, an experienced family law lawyer can effectively represent you in court. For instance, experienced family law lawyers are aware of the factors the court will consider in assessing custody and parenting issues and can assist you by ensuring that the court is fully aware of your position and the arguments which support it.

To speak to one of our experienced family law lawyers, please call (902) 492-7000 to arrange a meeting.

Legal Custody - Decision Making After Separation

There is a lot of misinformation out there about the words custody and access. When parents talk about custody and access they are generally referring to where a child will live “custody” and when the other parent will see the child “access”. What they are really talking about is what is referred to by the court as “parenting”.

The term “custody” is actually a legal term which refers to decision making. When a court order states that the parents shall have “joint custody” or one parent has “sole custody”, what this means is a party who has “sole” custody makes the major decisions for the child and parties who share “joint” custody share the major decisions together.  This does not necessarily bear any indication on the physical parenting (where the child will live) of the child. Major decisions are usually issues such as education, health, and religion.

Parents in a high conflict separation can put a lot of emphasis on who has sole custody or joint custody not truly understanding the meaning of these words. An experienced family law lawyer can assist you in determining these issues before there is a big battle over who gets “custody”. Parents who are emotional may sometimes see custody as a battle that they win or lose. There are alternatives on how these issues can be dealt with and an experienced lawyer can assist in minimizing the conflict.

Sometimes, something as simple as changing the language used can have an enormous effect. For example, replacing the title “custody” agreement with the title “parenting” agreement can help relieve the pressure that a parent may feel that they are winning or losing, and assist the parties in considering what is actually important: the needs of their children. Another decision-making option is what is referred to as “parallel parenting”. This term refers to a situation where one parent makes certain decisions for the children, for instance those relating to education and the other parent makes other major decisions for the children, such as those relating to religion.

Physical Custody - Where Will the Children Live?

When parents talk about custody of their children, they are typically referring to the physical custody of the child or where the children will live. There are several different types of parenting arrangements relating to the physical custody of children. The most common parenting arrangement is one where the children primarily reside with one parent. That parent’s home is referred to in law as the “primary residence” of the children and that parent typically has what is called “day-to-day” care. The other parent has parenting time with the children on a specified schedule or as is agreed to between the parents. This parenting time is generally referred to as “access” and has a negative connotation of a lack of control that can sometimes spark unnecessary battles.

Our courts presume it is in the best interests of children to have as much contact as possible with both parents. It is therefore unusual that one parent will be denied parenting time with the children unless it is proven that there is a danger of physical, mental or emotional harm to the children. Even in cases where there is a risk of harm, the court may still award parenting time on the condition that a third party supervises it, if it feels that this will alleviate the risk.

Other types of parenting arrangements are “shared” parenting and “split” parenting. A “shared” parenting arrangement is one where the children reside with both parents at least 40% of the time. “Split” parenting is where one child resides over 60% of the time with one parent and another child resides over 60% of the time with the other parent. Both of these parenting arrangements trigger special child support rules. There is often a misconception that child support is not payable in “shared’ parenting situations. This is generally only the case in situations where both parents have similar economic circumstances. An experienced family law lawyer can help you work out a parenting arrangement and assist in determining any support obligations or entitlements that may result.