Joint, Sole and Shared Custody

Once parents have made the decision to separate, usually the next decision - and arguably the most important one­­ - is the question of which of them is going to have custody of the children. 

But "custody" is a multi-faceted concept:  it is a single term used to cover two elements of the children's living arrangements, namely 1) their physical residence; and 2) the source of the parental decision-making that governs their day-to-day upbringing.

Accordingly, custody arrangements can take several different forms:  

Sole custody

Sole custody is the most straightforward of the three:  in this type of arrangement, the children live full-time with one parent, who has primary responsibility for them.   This includes the right to make all decisions respecting education, religion, medical care, and their general welfare, without necessarily consulting or even informing the other non-custodial parent.

Joint custody

In contrast to sole custody, where one parent is excluded from decision-making responsibility, joint custody arrangements feature involvement by both parents.  However, many people misunderstand joint custody to mean that each parent will have the children half of the time.   This is not the case - in fact joint custody has nothing to do with how much time each parent spends with the children.   Rather, with joint custody both parents have an equal say in the major decisions that affect the children's lives, including education, residence, health, activities, and schedules.

As a practical matter though, children must live in a stable environment, so their primary residence is usually centered around the home of one parent more than the other.  How much time the children spend with the other parent will vary according to individual circumstances, and in some cases the children may live with one parent exclusively. Either way, the underlying philosophy behind joint custody is that contact with both parents after separation and divorce is in the best interests of the children.   No parent is considered the "visiting" parent; rather, both parents maintain their parenting roles to more-or-less equal degrees.

For the joint custody to work, the parents must have at the very minimum an ability to communicate and reach decisions together as they relate to the children. The inability of both parties to communicate, whether due to high conflict or a criminal court order is often fatal to a claim of joint custody.  It must be noted that when one parent purposely creates the conflict or unreasonably refusing to communicate the Court may enforce joint custody or grant sole custody to the ‘communicating' parent

Shared custody

Shared custody (or shared parenting) is a more progressive form of custody arrangement aimed at increasing the amount of time that the children have with both parents.   The children's time is divided equally between the parents (though it may not always be an exact 50-50 split), and decision-making relating to all aspects of their upbringing is likewise shared.   This type of arrangement usually requires the parents to live in close proximity to each other, to make scheduling easier in connection with the children's activities and social interactions.

The key feature of shared custody is that the parents agree to communicate directly with each other about their children's needs and interests, and to focus on co-operation as a means of fostering a stable, positive environment. In some situations it is possible to establish a shared custody arrangement, where the parties do not communicate well, however their respective ‘decision rights' and responsibilities can be clearly established and exercised independently of each other.

Custody is a complex and ever shifting concept. It is the possible to tweak each arrangement with certain restrictions or rights, in order to customize it to the practical and individual needs. For example, it is possible to structure a sole custody arrangement as to restrict the custodial parent from making certain decisions, or require the custodial parent to consult with the non custodial parent before making certain decisions. The list of potential variations is practically limitless.

Custody arrangements - whether sole, shared or joint - can be freely negotiated in the context of a separation agreement. If the parties can not agree the custody arrangement can be ordered by the Court. Custody disputes can get quite complicated and as such it is of outmost importance to get qualified legal advice as it relates to your specific situation. You may contact our office and we will be happy to discuss your situation and explain the Law as it relates to your specific case.

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