Starting a family and having children can be a great source of joy in a relationship. However, not every union ends up victorious. Child custody is among the many nightmares that come with the termination of a relationship or marriage. This battle is draining, not only physically but also emotionally and financially. Even if the ending is amicable, sharing time, responsibility, and money for the children couples have together can result in new conflicts.
From 1991 to 2011, around 5 million Canadians were separated or divorced, and 38% of these had a child together at the time of their separation or divorce. This data shows that child custody battles have been common, even in the past.
So, if you are on the verge of a divorce or going through one, you’re probably wondering how custody decisions are made. How is child custody decided? Does gender affect the decisions of the court?
In this article, we will discuss how courts decide on child custody, different types of custody, and child custody statistics, so you’re well-equipped for your child custody battle.
How is Child Custody Decided?
Going through separation or divorce is devastating, especially if you need to decide on how to arrange your child’s permanent residence. According to the Department of Justice in Canada, there are three ways in which you can come to a decision.
The first and most common way is to have written arrangements where a legal professional or a family lawyer drafts up a legal separation agreement that includes the primary residence of the child. In fact, 52% of Canadians have chosen this way and have not submitted a court order for child custody.
Another way to settle child custody is through a verbal agreement. 32% of Canadians have chosen this method and simply stated what their decisions are to each other. While this can work, often, this arrangement is difficult to track and may lead to further conflicts if not properly implemented.
It’s best to get written arrangements about your child when writing separation agreements instead of having verbal arrangements. This will give you physical proof of the decision, which will be easier to manage and help avoid further problems. Having a lawyer draft one can mitigate possible conflicts that may arise in the future.
If the parents can’t settle for an arrangement, the court decides for them. 9% of Canadians don’t have any agreements, and thus, the court will determine custody and access arrangements. According to the Divorce Act, when determining child custody and access, the judge will consider what’s best for the child or children who formed part of the relationship.
Custody issues can be solved in two ways: living arrangements and decision-making. With living arrangements, the court will decide where the child/children will primarily reside and with which parent. For decision-making, the court will grant authority to either or both parents, which will have primary decision-making power for the child in several domains like health, education, and religion.
In addition, access orders can be granted to the other parent, allowing parenting time even if the child does not primarily reside with them. This court order may include who may spend time with the child, how long, and how often. The access types vary and can involve supervised, liberal/reasonable, no access, scheduled/specified, or mixed arrangements. Grandparents and non-family members are also allowed to apply for access to children.
Different Types of Child Custody Arrangements
There are no two families alike, so whatever child custody arrangement works for you may not work for other people. However, each agreement usually falls into these types of arrangements:
- Sole custody – As its name implies, only one of the parents is responsible for taking care of the children. All decisions are made by this parent, even if the other one disagrees.
- Split custody – This is the agreement where the children are divided into both parents. One or more will live with one parent, while the others live with the other.
- Joint custody – This situation happens when the court grants both parents custodial rights and allows them to agree on decisions regarding their children. The parents should communicate and cooperate to make this arrangement successful.
- Shared custody – This only applies to arrangements with joint custody. If one of the parents spends at least 40% of their or more with the children, it is considered shared custody.
Depending on the court-mandated custody arrangement, the children may live with one parent or need to split their time with both parents. You should note that access and custody arrangements are different. A judge may allow access or visitation rights, depending on the ability of both parents to work with one another. If one parent has a history of abuse or neglect, the court may not allow this parent access to the children.
Canada Child Custody Statistics 2022
In Canada, many people start families and have children without getting married. Does marriage affect the frequency of court orders obtained for child custody?
According to Selected Statistics on Canadian Families and Family Law by the Department of Justice, 48% of parents going through separation or divorce have applied for a court order or are in the process of getting one. 52% of those surveyed didn’t apply for one and have settled child custody through a written or verbal agreement.
Broken into types of union, only 40% of common-law couples have obtained court orders for child custody, and 60% have decided to settle custody outside of court. For married couples who were previously living together before marriage, more than 50% obtained court orders for child custody. It is also similar to those who married but didn’t live together before marriage. More than 50%, or 51.9%, of surveyed people decided to settle their child custody through the court.
At the same time, the time after separation also affects the application of a court order for child custody. Those recently separated (less than a year) often decide to settle out of court, with only 27% obtaining or in the process of getting a court order for custody. The number of court case custody applications increases, with 59% of surveyed people applying for one five years after the relationship ended.
Canada Child Custody Statistics by Gender
Important reminder: Since most child custody cases are settled outside of court, the statistics used in this report are from surveys recorded by the court. These numbers don’t represent all of the child custody in Canada, so further studies are needed to determine the actual child custody statistics by gender.
According to the same report by the Department of Justice, 79.3% of children under the age of 12 are placed under exclusive custody of the mother, and only 6.6% of the fathers have sole custody of the child. 12.8% of the court cases have granted shared physical custody to both parents. These numbers pertain to those child custody cases where a court order existed.
These numbers change depending on the age of the children at the time of divorce or separation. Surprisingly, older children are more likely to be placed under exclusive custody of their father or in joint custody arrangements. For ages 6 to 11, 8% of children are placed under the complete care of the father, and 16% of the children are in joint custody with both parents.
Among children aged six and below, only 18 percent of them get entrusted exclusively to the father and in joint care. Finally, children from broken common-law unions will most likely remain under the mother’s care (84% of the children).
When it comes to winning child custody, it’s evident that mothers tend to win the custody battle compared to fathers. One of the reasons is the case that women are considered to be the primary caregivers of their children, especially during their formative years. That’s why care for younger kids is often awarded to mothers. But that isn’t always the case.
While the share of custodial mothers is bigger than custodial fathers, many recent divorce child custody statistics tell us that the number of custodial fathers–exclusive or not– has soared over the past few years. In 2017, 63% of divorced and separated parents had joint custody of the child. This number is much higher than the previous report stated by the Department of Justice.
So, how can a father win a custody battle? While it’s no longer uncommon for fathers to win custody battles, it’s still up to the judge to decide who gets the child or not. This evaluation will begin when both parents have not reached a mutual agreement and if the father is healthy with criminal convictions. Other factors are also determined, such as having a good relationship with the child, paternity, having a stable, full-time job, and others that can help increase the chances of winning.
Parents also have the chance to contest the result of the court order. According to a Canadian Department of Justice report, less than 4% of divorces are finalized by a contested hearing. In these types of cases where there is a counter-petition or trial, 75% of the child is awarded solely to the mother and only 8% in sole parental custody.
Divorce and separation can be messy and complicated. Family disputes are always part of the process, and child custody problems are one of them. While child custody statistics show that mothers tend to get awarded sole custody of their children, more and more studies show that gender does not play a role in winning a custody battle. If you can, it’s best to come up with a written agreement of your child’s custody. But if that’s not an option, you can always rely on good representation to win your child in court battles.