What is child custody?

Child custody and guardianship refers to the practical and legal relationship between a parent and his child, which includes caring and making decisions for the child. The concept of the terms 'custody' 'access' or 'visitation' have now been replaced by 'residence' and 'contact'. Instead of the courts stating that a parent has 'custody' of a child, the child is now being said to 'reside' with that parent.

Child custody is an issue that typically rises from incidents such as divorces, annulments and legal actions that involve children. Common statutory provisions state that the child born within a marriage will get the joint guardianship of the parents and the right of either parent to the child's custody after their separation is equal.

However, the issues involving residence and contact will be determined based on what the courts see as the most positive for the child's interests. In fact, legal professionals are already referring to custody and visitation as 'parenting schedule' in order to remove any negative connotations about the distinction between the parent who gets child custody and the parent who does not.

Who decides?

Most laws regarding child custody are state laws. In case of a divorce, it is the court which has jurisdiction over the proceedings who will determine which parent or guardian gets child custody. In most cases, parents with children under 18 years of age will be required to file for custody in case of divorce or annulment. For children under 21, both parents will be mandated to provide support following the Child Support Standards Act.

Who gets custody?

Child custody is determined on the basis of what the court deems 'in the best interests' of the concerned child or children. In cases of parents or guardians separating, the court will decide on which parent will be better able to provide for the child's needs. Child custody proceedings are child-centered and the standards for custodial awards are designed for the protection of the child.

As long as there is no evidence of misconduct on the part of either parent, their rights to child custody are considered equal. For this reason, the parent's history, mental state, financial capability and relationship with his or her child will be considered when the court has to make a decision.

In the case of married parents filing for custody or divorce, legal custody of their child or children will be automatically shared between them, albeit temporarily. Sole legal custody to one parent will only be awarded if the court finds evidence that it is really for the child's best interests.

The court may also schedule specific periods to be followed by both parents, depending on the needs of the child. Older children and those in their teens may need longer time spent with each parent and don't require frequent shifts between guardians. Younger children, on the other hand, may need shorter and more frequent periods spent with each parent.

Issues that may affect a parent's request for child custody

Some issues will be considered by the court as evidence that a parent is unfit to have custody of his or her child, including use of alcohol, drugs and illegal substance, mental disorder, desertion, unwillingness or inability to participate in the child's care and family abuse.

Both past and present evidences of abuse or neglect will be considered by the courts to determine which parent is best suited to have custody of the child. However, this presumption is rebuttable and the abusive parent may challenge it in the court if he or she so wishes.

For a child with unmarried parents, it is the mother who automatically gets custody unless a family court decides otherwise. If the court finds evidence that the parents can perform joint responsibility and can both provide for the child's best interests, both parents (if they agree) may be awarded with shared physical or shared legal custody.