Who Gets Custody? Advice from a Family Lawyer for Child Custody Cases
- nichollealtitudeb2
- Apr 21
- 5 min read
Updated: Apr 30
One question that frequently comes up in separation or divorce proceedings is:
Who gets custody of the child?
Framing the question in this way requires some unpacking. As children are not property, custody is not a right that you “get” but a responsibility that you “owe” to your child. This responsibility applies to major decisions affecting a child’s health care, education, religion, and extracurricular activities.
Focusing on the children, it is easier to find solutions and avoid creating more tension in family proceedings. It is important to note that contrary to popular belief, custody has nothing to do with where a child will live or visit. That aspect of a parenting plan is called “access”. Custody strictly applies to major decision-making responsibility.
This article explores how custody disputes are decided, your role and responsibility as a parent, and how a trusted family lawyer for child custody can assist you avoid pitfalls and support you every step of the way.
Types of “Custody” in Family Law?
There are generally three types of custody arrangements:
1. Sole Custody: One parent is solely responsible for making decisions for the child. It may involve some consultation with the other parent depending on the terms of the order or separation agreement. This form of arrangement is more suitable for parents who have significant difficulties with communication. This might mean that they are unable to collaborate or agree, leading to deadlocks that negatively impact children. A non-custodial parent still has a right to information about their child and should be able to obtain same from service providers.
2. Joint Custody: Both parents share decision-making responsibilities. This requires collaboration and agreement on major decisions. If the parents do not agree on a particular major decision, the intended decision cannot be made without a court order resolving the dispute. Accordingly, this is a more suitable for formula for low-conflict separations and parents who have fewer difficulties with co-parenting.
3. Parallel Custody: Each parent has final say on different aspects of the child’s life. For example, one parent may have final say on education and the other parent on health matters. This approach is sometimes adopted where there is concern about one parent’s role being undermined due to conflict even though both parents are actively involved in the child’s care and life.
How Do Courts Decide Who Gets Custody?
As hinted earlier, the paramount consideration in resolving parenting disputes is the child’s best interest. There are several factors that the court will consider in making parenting orders, but the most relevant to “custody” disputes include the following:
The history of care of the child;
The ability and willingness of each parent to communicate and co-operate, in particular with one another, on matters affecting the child;
Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
Any plans for the child’s care;
The ability and willingness of each person to care for and meet the needs of the child;
Any family violence and its impact on, among other things,
the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
Relevant past or present conduct that speaks to exercise of judgement, including drug or alcohol dependency and criminal conduct or history.
As family law lawyers, we assist parents with telling their story backed by evidence and in view of the child's well-being. Having the right strategy and solid evidence is paramount.
Common Myths About Child Custody
Many parents enter custody discussions with misconceptions. Let’s clear up a few:
Myth 1: Mothers Always Get Custody: Not true. Family court is duty bound to evaluate each case individually and prioritize the child’s best interests, not the parent’s gender.
Myth 2: Primary residence equals Custody: This is true in many but not all cases. Access is different from Custody. In some cases, it is appropriate for an access parent to have joint custody, particularly where they have been historically involved with decision making and both parents are able to communicate effectively.
Myth 3: Sole custody means you get to do what you want: Like the popular spider man comic phrase goes, “with great power comes great responsibility”. Sole custody requires the custodial parent to make child focused decisions that prioritize the child’s needs over self-interest or personal grievance. It is a job that often requires the custodial parent to take initiative, attend appointments, obtain and share information with the other parent.
Improper exercise of discretion or poor decision-making (including those that undermine the child’s relationship with other parent) could result in a review or change of a sole custody order.
An experienced family child custody lawyer can help clarify these issues and keep your expectations realistic. Avoid making assumptions or taking unilateral decisions before obtaining legal advice, particularly in high conflict matters. Consulting with a skilled family lawyer is always recommended.
Do You Need a Family Lawyer for Custody Matters?
Absolutely! And especially when there’s conflict, communication challenges, or concern about a parent’s conduct. But, why?
A seasoned family lawyer ensures that your rights are protected, helps you understand your legal position, and guides you through negotiations or court proceedings.
At Michael Iyore Law, we’ve helped clients with:
Developing child-focused parenting plans
Navigating disputes over decision-making authority
Securing temporary or permanent custody orders through the court
Representing clients in mediation and family court hearings
Our goal is always to achieve outcomes that support the best interests of your child and reduce unnecessary conflict, while protecting your legal rights and ensuring that your voice is heard in court.
Real-World Scenario: Navigating Custody with a Family and Law Approach
Consider the case of Lisa and David (names changed for privacy). After their separation, David wanted joint custody of their two young children. Lisa was unsure if joint custody would work, given their communication struggles.
Working with our firm, we helped both parties understand the child-centered approach required by Ontario’s family law. Through negotiation and careful legal drafting, we developed a joint parenting plan that gave David a meaningful role in his children's lives while addressing Lisa’s concerns about stability and routines. The result was a balanced solution, without the need for a stressful court battle.
How the Family Law Act Supports Custody Decisions
The Family Law Act and the Children’s Law Reform Act are the primary legislative tools used in Ontario custody cases. They are designed to meet the following objectives:
Establishing parenting plans that are best suited to meet the children's needs.
Minimizing the children’s exposure to abuse and adult conflict.
Ensuring that children are cared for in a safe and loving environment.
Encouraging parents to work collaboratively, where possible.
If you're unsure about how these laws apply to your situation, a family law lawyer can walk you through your options.
Get Legal Support That Puts Your Child First
Child custody issues are never easy, but you don’t have to face them alone. Whether you're seeking to establish, modify, or enforce a custody arrangement, the support of a compassionate and experienced family lawyer can make a meaningful difference.
At Michael Iyore Law, our mission is to provide clear legal services in family law that are grounded in empathy, strategy, and child-focused solutions.
If you're navigating a separation and asking, "Who gets custody?", we’re here to help.
Reach out to us today for experienced guidance from trusted family law lawyers who are on your side.
Disclaimer: This content is not legal advice. To speak with a lawyer at our office, please schedule a consultation at the link below:
