Physical and Legal Custody of Children During a Divorce

There are two kinds of custody when it comes to custody of children physical custody and legal custody. Don’t be fooled into thinking physical custody is a non issue, if your spouse’s divorce lawyer attempts to tell you that it’s no big deal, in some situations having physical custody allows your spouse to move the child to another province or city without your consent. In these situations you must prove that the move would be detrimental the child to block the action. Always consult with your Toronto Divorce Lawyer before agreeing to any major concessions when making decisions. It’s important that you don’t attempt to handle the divorce on your own especially if your spouse has hired a divorce lawyer. The only situations you may want to handle the divorce on your own is if there’s mediator, or if the divorce is dissolved after a short period of time.

Legal custody allows you to make decisions about their welfare, this includes where they attend school, the religion they’ll practice, whether they need academic tutoring, when they see a doctor, how medical attention will be given.

The preference of courts is to have both parents share legal custody in determining the welfare of their children as when they were married, they would like to have both parents be involved in the children’s lives and share legal responsibilities in raising the children. This is considered joint legal custody.

However the courts can award full legal custody to one parent when in the following situations:
•    Parents are arguing too much over all issues, and can’t come to an understanding that’s in the best interest of the children involved
•    One parent lives far away
•    If a parent is abusive or doesn’t show any care for the children
•    If a parent neglects his responsibility as a parent and doesn’t want to be involved in the children’s lives

Physical custody is where the parents live on a daily basis. Courts prefer joint custody so both parents are actively involved in the upbringing of the children. Joint custody doesn’t mean an equal amount of time with both parents, however if the child lives with one parent and the other is granted visitation rights.

The decision for legal or physical custody is made separately by the judge. It’s not uncommon for parents to have joint legal custody but one parent to have sole custody and for the other to have regular visitation rights. As stated above legal custody means making decisions that affect the children’s life.

In some provinces the parent with physical custody is allowed to move away with the children, the parent without physical custody can attempt to show in court that this would be detrimental to the child, in order to prevent the move. If your spouse’s divorce lawyer tells you that having sole physical custody doesn’t matter don’t buy into make sure that your consult your own Toronto Divorce Lawyer and they’ll tell you that it’s an issue in some situations they could move the children to another province. Always consult your divorce lawyer Toronto before making the decision.