Few recently separated clients really understand what the terms “custody” and “joint custody” mean. To these common terms, judges, lawyers, and professionals also use terms such as “primary care,” “shared parenting,” and “parallel parenting.” Many believe “custody” means which parent the child lives with or how much time the child spends with each parent. Instead, the various derivations of the term really encompass decision-making. Decision-making in the context of custody really refers to a series of parental rights and obligations that includes who has day-to-day care of the child, the right to make particular decisions about his or her health education and welfare, among other issues. These decisions can include, for example, whether a child goes to a public or parochial school, the religion he or she is raised in, extracurricular activities he or she is enrolled in, as well as a litany of others. In some cases, decisions can be divided up, so one parent may decide on the child’s health issues while the other decides on educational ones. The label can also have significant consequences when an issue of mobility arises; that is, when a parent wants to move a distance away with the child.
Pursuant to the Children’s Law Reform Act, a parent, a grandparent, a relative, or any other individual who has a relationship with the child may make an application for custody. It will surprise many to learn that a “blood relationship” is not the definitive determination of who gets custody, although in the vast majority of cases the contest is between the parents.
Paramount to a court deciding on the incidences of custody and access is the “best interests of the child.” The court is not concerned about what is in the best interests of the parent, because parents do not require court protection. The court will always look at all of the issues that are relevant to the best interests of the child when deciding on the issue, although some issues are obviously more important than others.