Decision Making versus Custody

This is the area of family law that used to be called ‘Custody’. But the correct legal term being used now is parenting time and decision-making authority. This part of the law includes who the children live with, how often the other parent gets to see the children, and who gets to make decisions for the children.

Decision-making responsibility refers to who makes the major decisions for the children. These include medical, education, and religious decisions. There is shared decision-making responsibility, meaning that both parents are responsible for making these decisions and both of their consents are required for major decisions, and there is sole responsibility, where one parent is given the authority to make those decisions.

Parenting time means who gets to spend time with the children and for how long. This part of the law is about creating a parenting plan which takes into account the intricacies of your specific situation and makes a parenting plan that is in the best interest of the children. In most cases, one parent will have ‘primary care’, meaning that the children would reside with that parent for a majority of the time, and the other parent would have ‘access parenting time’ with the children. A parenting plan can also be set up in a way that the children spend an equal amount of time with both parents. This can be a difficult and contentious area of law to work out with your former partner, that is why the assistance of a lawyer at this stage can be very beneficial in obtaining the parenting time that works for you and for the children.

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When can a child make a decision to live with a parent?

In all cases, the motto is ‘children have a voice but not a choice’. The children can voice their preferences at any age but in the end the Court does not have to do what the child says. The Court’s direction is to do what is in the best interest of the child, and the best interest of the child might not always be what the child says. But as can be expected, the older the child is the more their voice will factor into the Court’s decision making, an updated motto then could be ‘children have a voice but not a choice, and the older the children the more persuasive the voice’.

What do judges look at when deciding custody?

The term custody is being phased out and instead the term Parenting Time is being used. When looking at how to divide Parenting Time between parents, Judges always keep in mind the Best Interest of the Child.

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