Separation and divorce
How do judges decide on child custody when the parents can’t agree?
When parents separate, one of the first things they need to do is determine when their child will spend time with each parent. This is called “custody” or “parenting time.” When parents are unable to agree on this point, a judge can decide.
When can you ask a judge to rule on custody?
You can ask a judge to rule on custody as soon as you break up.
You can file an urgent application, also called an “application for a safeguard order” to get a decision quickly, i.e., within a few days or weeks. In this case, the judge’s decision is temporary, and you’ll have to go back to court to ask the judge to render a permanent decision.
To get a permanent decision, you have to submit a written application using the normal judicial process. You can submit it at the same time as your other applications related to your separation or divorce (e.g., application for divorce, application to decide on the partition of property, etc.).
In that case, your permanent parenting schedule will be established when the judge renders a decision on the other applications.
As your child’s needs evolve or if there are major changes in his or her life, you can go back before a judge to modify the parenting schedule.
Please note
As a general rule, before a judge rules on custody, both parents can see their child whenever they want, as long as it’s in the child’s best interests.
What issues can a judge decide?
Regardless of the type of application you make, you must indicate your wishes regarding custody.
For example, you can specify the schedule you want and, if necessary, a special schedule for certain periods of the year (e.g., vacations, statutory holidays, birthdays, long weekends, etc.).
You can also ask a judge to:
- Prohibit the other parent from behaving in a certain way when he or she is with the children (e.g., denigrating the other parent, using drugs, etc.).
- Order that the other parent be supervised when spending time with the child, which is called “supervised access” or “supervised parenting time.”
Did you know?
Since March 2021, the Divorce Act has used the term "parenting time" instead of "custody" and "access" to refer to the time the child spends with each parent. Therefore, you may find this expression in your legal proceedings or in judgments rendered by the courts.
The terms "custody" and “access” remain in effect for de facto spouses, however.
The only consideration is your child’s best interests
When making a custody decision, the judge will take only one principle into consideration: your child’s best interests.
The interests of each child vary, depending on a number of factors, including:
- The child’s age
- The child’s relationship with his or her parents
- The child’s health
- The parents’ ability to communicate with each other
- The parents’ ability to take care of the child
- Whether there has been family violence
When the children are older (adolescents, for example), the judge may also consider their opinion.
How judges determine the child’s best interests
In addition to traditional means such as the parents’ testimony and real evidence , the judge can use other measures to make a decision in the child’s best interests. Here are two examples:
Appoint a lawyer for the child
If the judge considers it necessary, he or she will appoint a lawyer for the child. This might happen if the parents don’t know what their child wants or are unable to objectively assess his or her best interests.
In such a case, the child will have a lawyer to make his or her views heard without the child having to attend the hearing.
Request a psychosocial assessment
If the judge considers it necessary, he or she can request an assessment of the parents’ psychological, social, and emotional profile.
In this case, a psychologist or a social worker is appointed to assess each parent’s ability to take care of the child and encourage optimal and healthy development.
The judge then uses the conclusions of the expert assessment to help make a decision. However, the judge isn’t obliged to render a decision that follows the psychosocial assessment.
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ANG - L’information présente sur cette page ne constitue pas un avis ou un conseil juridique. Nous vous indiquons ce que dit la loi au Québec de manière générale. Pour obtenir un avis ou un conseil juridique concernant votre situation personnelle, consultez un professionnel du droit.
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