There has been a growing trend, in Ontario, in family law and divorce, over the past few years, for family courts to issue joint custody orders. Some hoped that the skills of raising children in groups could be improved by benefiting from the award of solidarity. In the latest decision of the Ontario Court of Appeal by Kaplan v. Kaplan, we have tried to put this practice in perspective.
In this decision, the parties were married in 1998 and separated in January 2002. The couple had a daughter who was born in October 2001. In court, the father applied for the right to live together, and the mother objected to the application, saying the parties could not communicate. Without screaming. The judge in the case granted the parties the right to stay together, and the mother appealed the decision. The appellate court set aside the order of joint custody and the mother was granted custody, of the child.
The Court of Appeal stated that, in order to be awarded the right to cohabitation, there must be additional evidence that, despite the strong conflict between parent and partner, the parties can and will cooperate and communicate effectively. In the case of the case, there was no evidence to support the claim that the trial judge had decided how the child would be able to express his or her emotional and psychological needs and that the child was too young to express his or her wishes.
About the same time that the case was decided, the Ontario Court of Appeals ruled in Ladies v. Ladies, where the appellate court upheld the judge's order in conjunction with the co-authorizing case. In this case the judge had the advantage of hearing the testimony of the Children's Advocate who presented the children's wishes and recommended that they be kept together. It is alleged that the trial judge had heard evidence from other people about proper co-operation and communication between the parties. The judge also looked at the history of monogamy during marriage and that despite their intense conflict, the parties were able to communicate effectively and put the interests of their children ahead of their own, where necessary.
In summary, in Ontario joint cases, it would appear that the courts would now look more closely at the evidence from third-party witnesses and experts, who could show that the parties could cooperate and communicate effectively and be able to set aside. Their disagreements and conflicts, for the benefit of the children. Lack of historical cooperation and proper communication between the parties will greatly reduce the success of the joint maintenance application. The view of some, that the granting of joint custody of children will enhance the abilities of the surrogate parent, will not be sufficient in itself to grant the right to joint custody, without proper co-operation and communication between the parties.
Physical custody
"Physical custody" refers to the child's place of residence. The custodial parent spends most of his or her time with the child. The judge may order the parents to share physical custody, which is called, "joint custody". In a joint care setting, both parents will spend more time, but not more, with their children. For example, under a joint child custody program, one parent may have children 4 nights a week, while the other parent has children 3 nights each week.
Sometimes a child is not safe in the care of a single parent. In these cases, the judge will grant one parent the right to physical custody and the other parent will receive regular visits.
Legal Compliance
"The right to adopt children" is the parent's right to make major decisions on behalf of the child. The custodial parent can decide where the child should go, what religion the child should go to, and whether the child should receive certain medical treatment. In most cases, parents will share the legal right of care unless it is in the child's best interests.
In some cases, a judge will grant a single parent legal custody of a child. This means that only one parent can decide how the child should be raised and where the child should go. However, both parents have the right to access a child's medical or school records, whether that parent has the right to physical or legal care.
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