During a separation, one of the first questions often concerns the types of custody for children. Contrary to certain beliefs, there is no automatic rule. Indeed, each family situation is unique. Thus, the court must analyze the facts in order to determine the types of custody best suited to the situation, always in the child’s best interests.

Criteria for determining the type of custody

The court analyzes several criteria when assessing the appropriate types of custody for the child. In particular, it considers :

• The child’s age
• Each parent’s ability to care for the child
• The stability of the living environment
• The availability of each parent
• The child’s wishes
• Other relevant factors depending on the context

One of the most important criteria : the child’s best interests

Section 33 of the Civil Code of Quebec is clear and fundamental with respect to types of custody. Indeed, it specifies that the child’s wishes and opinion must be taken into consideration. However, the court does not seek fairness between the parents. On the contrary, it primarily aims to protect the child.

Consequently, the child’s best interests are the main criterion that must be considered when determining custody arrangements.

Types of custody

Sole custody

Sole custody means that the child resides primarily and predominantly with one parent. The parent concerned then assumes the majority of the child’s daily responsibilities. Sole custody is generally discussed when the child lives with that parent approximately 80% of the time.

However, sole custody does not exclude the other parent from the child’s life. Thus, the parental bond remains important and protected.

Sole custody with access rights for the other parent

Sole custody with access rights is one of the most common types of custody. This arrangement means that the child lives primarily with one parent, known as the custodial parent. The other parent then benefits from access rights.

In practice, the non-custodial parent sees the child on a more limited basis, generally between 20% and 40% of the time. Thus, this allows the parent to maintain a relationship with the child.

For example, the non-custodial parent may see the child on certain weekends (one weekend out of two). This may also include a specific period during the child’s holidays.

This type of custody is often chosen when the parents live far from one another. In addition, it may also apply when one parent has a very demanding and unstable schedule.

Shared custody

Shared custody means that the child spends time with each parent. Contrary to a common belief, it is not always divided equally.

Thus, although shared custody is often a 50-50 arrangement, it may also be 40-60. Moreover, there is no presumption of shared custody under Quebec law.

In other words, in the event of a separation, the court never automatically orders this type of custody.

Indeed, over time, courts have developed certain criteria to determine whether shared custody is appropriate. The judge considers, in particular, the following criteria :

• The child’s best interests and stability;
• Each parent’s parenting capacity;
• The parents’ ability to communicate with each other;
• The absence of conflict;
• The proximity of the parents’ two residences.

Why consult a lawyer?

In the event of a separation, every situation is different. Thus, the types of custody must be analyzed carefully. A lawyer can assess realistic options based on your family situation.

In addition, a lawyer can help negotiate an agreement that respects the child’s best interests. The objective always remains the protection of the child and the rights of the parents. Our firm can support you in family law at every stage. To obtain assistance, contact our team.