What is the standard that guides a court’s decision of custody?
Best interests of the child – In making an order on custody and access, the court will look at what is in the best interest of the child(ren). The conditions, means and needs of the children are all taken into account in making this order. The factors a court will consider are:
1. Love, affection and emotional ties between those people claiming custody as well as other members of the child’s family who reside with the child. The court will also look at other people who are involved in the child’s care.
2. Wishes of the child. The Children’s Law Reform Act provides that the views and preferences of a child are to be considered in a custody case if such views and preferences can be reasonably ascertained. The courts have ruled that the older the child is, the more weight the child’s testimony will have in terms of what is in their best interest. In cases where children are 14 to 16 years old, it is very rare for the court not to take their wishes seriously. The court can ask a lawyers from the Office of the Children’s Lawyer to step in and speak on the child’s behalf to express his or her wishes. It must be recalled, however, that the wishes of the child(ren) are only one factor to be considered.
3. Stability. The courts are inclined to want to maintain the status quo. The length of time the child has lived in a stable home environment will factor into the decision of whether to vary child custody. This is important where a temporary arrangement is in place. The longer a temporary custody arrangement (by agreement or court order) is in place, the more important it becomes in a court decision. For this reason, parents should act quickly if they want to change the existing custody arrangement.
4. Guidance, education and necessities of life. The court will take into consideration the ability and willingness of each person applying for custody to give the child guidance, education, and the necessaries of life. They will ensure that the custodial parent will be able to cater to any special needs of the child.
5. Parenting plan. Each parent will have to submit a parenting plan to the court. The judge will then examine that plan for the child’s care and upbringing and use it as a factor in considering the best interests of the child.
6. Ability to act as a parent. The courts also consider that it is most often beneficial for children to have a relationship with both parents, even after separation.
7. A parent’s right to custody. The right of a parent (by blood or through adoption) to have custody of his or her minor child is substantial and, while not absolute, in not interfered with unless the best interests of the child clearly demand it. Thus, as against other relatives and third parties, a child’s natural parent is entitled to the custody and care of the child in an initial proceeding for custody, absent a finding of unfitness. However, where the relationship between the child and a non-parent better promotes the child’s welfare than does the relationship between the biological parent and the child, a judge has some latitude to award custody to the non-parent. This will happen, however, in very few contests between a natural parent and a third party.