Both parents can have custody of their children when they break up since the law considers them as equals. One parent does not have more rights than the other parent to custody of the children.

As a result, a parent cannot take the children away with him if the other parent does not agree to this.

Ideally, when they break up, parents should come to an agreement on the best way to share their time with their children. If they cannot agree, one or both parents may ask the judge to make an urgent decision on custody.

It is important to keep in mind that a judge may decide to maintain the custody arrangement that you put into place at the time of your breakup. This is because the children’s stability is one of the important elements the judge must consider when making a custody decision.

So, before you leave the family home, it is important to reach an agreement with your ex or get a judgment on custody on an urgent basis. If you make the decision to leave and hand the children over to your ex for weeks, the judge could decide to maintain that arrangement and give custody of the children to your ex. It would be difficult to convince the judge that leaving the children with your ex is not in their interest when you have lived with that arrangement since the breakup.

You have several options, such as:

1. Family Mediation (free)
   
   Family mediation is an alternative way of resolving a dispute. Parents can attend a number of free mediation sessions.
   
   With the help of an accredited and impartial (unbiased) mediator, parents can try to negotiate an agreement that will meet their children’s needs. Sometimes, when the children are old enough, the mediator will suggest that they take part in the mediation.
   
   The mediator must help the parents find a solution. He does not have the power to impose a solution on them (as opposed to the judge, for example).
   
   To learn more about mediation, consult our Infosheet Free Family Mediation.
   
   
2. Negotiation
   
   Each parent can hire a lawyer and give him the mandate to negotiate an agreement on child custody. The parents can attend these negotiations with their lawyer or have their lawyer attend on their behalf.
   
   For more information about negotiation, and to learn about other methods of resolving a dispute, consult our Infosheet Alternative Methods of Dispute Resolution.

The key criterion considered when making a custody decision is the best interest of each child. Contrary to popular belief, the law does not give preference to the mother in custody matters. The courts acknowledge that a child needs his father as much as his mother.

To determine which arrangement is in the child’s best interest, a judge will consider the following factors:

• the needs of the child
  
• the ability of each parent to meet those needs
  
• the relationship between the child and each parent
  
• the relationship between the child and other family members
  
• the child’s stability
  
• the child’s physical and mental health and those of the parent requesting custody
  
• the true availability of each parent
  
• the lifestyle of the parents if it has a direct impact on the child
  
• the desirability of keeping siblings together
  
• the willingness of each parent to maintain a bond between the child and the other parent
  
• the child’s age
  
• the child’s wishes

Unless they have a direct impact on the child’s best interest, the judge will not consider the following factors:

• the financial resources of each parent
  
• the cohabitation or remarriage of a parent
  
• the sexual orientation of the parents
  
• the past conduct of one of the parents toward the other parent (for example, adultery)
  
• the cultural heritage of the parents

For example, if a parent’s new spouse is violent with the children, the judge will take this into account since it directly impacts their best interests.

It all depends on the child’s best interest. The judge must always ask herself which type of custody arrangement best suits the child’s interests under the circumstances.

She can award

• joint custody, or
  
• sole custody, with or without access rights.

Joint Custody

A child is said to be in “joint custody” when he spends between 40 and 60% of his time with each of his parents (between 146 and 219 days per year).

Sole Custody

A child is said to be in “sole custody” when he spends more than 60% of the year with only one of his parents (more than 219 days per year).

If the judge gives sole custody of the child to one of the parents, he can grant the other parent “access rights” (also known as “visitation rights”). These rights allow the other parent to maintain contact with his child despite not having custody.

To learn more about access rights, consult our Infosheet Exercising Access Rights.

No. To determine which custody arrangement is suitable, a judge must always consider what’s in the best interest of the child under the circumstances.

It is important to understand that there isn’t one type of custody arrangement that works equally well for everyone. Why? Because each child is unique and their needs and personal situations differ. A judge must tailor his solution to the case before him. That means that, from one case to the next, the custody arrangement can differ.

A judge will grant joint custody if this type of custody arrangement is in the best interest of the child.

For joint custody to be in the child’s best interest, his parents must:

• be able to provide the stability needed to foster the child’s development
  
• be equally able and competent to care for their child
  
• maintain a sufficient degree of communication and not be in conflict
  
• live close to each other

Seems a bit difficult to understand? Here are two practical examples of how these criteria are applied:

Yes. Parents maintain their "parental authority" regardless of who gets custody.

Parental authority is a collection of rights and duties granted to parents by law, such as caring for and educating their children, providing for their needs, and taking all of the necessary decisions to ensure their well-being.

While living together, parents, whether they are married, civil union spouses, or common law spouses, jointly exercise parental authority over their children.

Following the breakup, both parents retain all of the rights and duties related to parental authority. If only one of them gets custody of the children, the other parent only loses that one part of his parental authority: the right to custody of the children. He retains all of the other parts of his parental authority. Having "custody" gives a parent the right to determine the child’s residence and to keep the child there.

Of course, being with the children allows the parent who has custody to exercise his parental authority on a daily basis, while the other parent can only do so from a distance. But, since the parent without custody still has parental authority, he must be consulted about important decisions regarding his children.

What is an "important" decision? Here are a few examples:

• the choice of a school
  
• religious practices
  
• medical treatment required by the child’s state of health
  
• certain medical treatments such as orthodontics
  
• long-term activities

The parent who does not have custody also retains the right to consult his children’s report cards, attend parent-teacher meetings, obtain information about any medical care his children are receiving, etc.

Parents disagreeing about a parental authority issue can ask the court to settle the issue.

Since parental authority ends when the child reaches adulthood, custody also comes to an end once the child turns 18.

However, between the time the judgment on custody is made and the child’s 18th birthday, changes can occur. For that reason, a judgment on custody can always be modified. However, the change in question must be unexpected and sufficiently important to justify re-opening the custody debate. The change must also make it necessary to re-examine the custody arrangement already in place.

For instance, changes in the child’s needs, situation or his parents’ ability to care for him might be changes important enough to re-open a custody matter.

Here are some situations that could lead to a change in custody:

• one of the parents is moving abroad
  
• the recovery of a sick parent
  
• the parent who has custody is doing everything to prevent the child from seeing his other parent
  
• the child wants to go live with the other parent

When faced with one of these situations, the judge will not automatically change custody: he must re-evaluate the situation in light of the child’s interests.

The law gives priority to the parents when it comes to the custody of their children. Despite this, it is possible for another person to get custody of the children if it is in their best interest.

That other person will have the difficult task of convincing the judge that custody should be given to him rather than the parents. Custody will not be given to a grandparent just because he is richer than a parent!

Here is a case in which the Supreme Court of Canada gave custody of the children to someone other than the parents:

The mother, who had custody of the children, passed away. The children went to live with their father. The father’s way of educating the children was very different from their mother’s. The relationship between them rapidly deteriorated. The children insisted on living with their uncle and aunt, with whom they had an excellent relationship. Taking into account all of the circumstances, the children’s interests and wishes, the court allowed the children to live with their aunt and uncle.

Yes. In any matter that affects him, a child has the right to express his opinion to the judge. How?

• On his own, or at the request of one of the parents, the judge can name a lawyer to represent the child when it is in that child’s interests to do so.
  
• The child can hire his own lawyer. His lawyer will then ask the judge’s permission to intervene on behalf of the child in his parents’ dispute.
  
• Finally, the child can express his opinion to the judge without being represented. He becomes a witness in his own custody trial.

The older and more mature the child, the more his preferences regarding custody will be taken into account by the judge. In general, the judge will consider the opinion of a child between the ages of 8 and 11, whereas the opinion of a child over 12 will be strongly considered, and perhaps almost conclusive. Of course, there are no absolute rules in this area as the best interest of the child must always prevail.

No. In "regular" custody cases, the testimony of the parents, their witnesses, and sometimes the child, is sufficient.

In "complex" cases, an expert’s report may be both relevant and necessary to help the judge determine the needs of the child and the true parenting abilities of each parent.

This report can be made at the request of one of the parents by an expert of his choice or requested by the judge. Usually, it is a psychologist, psychiatrist or social worker who prepares the report.

The expert meets each of the parents individually and then each of the parents with the child. Depending on the circumstances, the expert may also meet with the child alone. After analysing the whole situation, he writes a report and makes recommendations. Sometimes, he is called as a witness at the hearing.

The judge does not have to follow the expert’s recommendations. However, the expert’s report and testimony (if he testifies in court) are important pieces of evidence that the judge must take into account in his analysis.