Divorcing couples swim in a sea of emotions. These emotions run high - before, during and after a divorce. And when there’s too much emotion our ability to think is impaired. For the sake of the children, we should dispel the clouds so we can think clearly and focus on logistics – how to divide the children’s time for each spouse, with the least amount of disruption.
Caveat: this article is simply a primer on child sharing arrangements when husband and wife obtain a divorce. It should not be interpreted as legal advice. Consult a lawyer for legal advice.
Our intention is to provide you with information to guide you in your decision about sharing the children after a divorce: terms used and factors to consider. We will provide an overview of the Canadian and US positions on the sharing of children following a divorce. However, it will be up to you to discuss these issues with your spouse and then raise them with a lawyer if you are not clear about any aspect of the law.
Sharing the Children After a Divorce - The Canadian Position
Family Law lawyers are usually the experts on child-sharing arrangements. While this matter can be settled amicably between spouses without the need to go to court, there are still some points that must be taken within the legal context. Federal and provincial laws apply in specific issues, so the province where you live and obtain a divorce will have a say in child sharing arrangements.
Overall, if you’re a Canadian obtaining a divorce, you have to be familiar with some terms.
The web site of the Canadian Department of Justice provides guidelines on child custody and child support, but again, they make it clear that the information they provide must not be taken as legal advice. Terms like “parenting arrangements”, “shared custody” and “sole custody” are only a few of the terms you will encounter.
We’ll look at these terms separately:
– these are the post-divorce or post-separation arrangements parents make for their children which define, among other things, where the children will live and how matters like education and health care are to be decided by the parents.
– this arrangement may be applied if both father and mother care for the child at least 40% of time in any given 12-month period.
– as provided for in the guidelines, sole custody applies when the child lives with one parent at least 60 percent of the time over a 12-month period.
Canada has its Divorce Act, but if the province or territory where the divorcing couple lives has its own guidelines, these guidelines may take precedence over the Divorce Act. It is the provision called “designation.”
The US Position
One writer thinks the word “custody” may cause confusion. But confusing or not, it remains to be the # 1 issue that will have to be decided when two people divorce.
In an effort to diminish the confusion, we’ll say right off that custody can be of two kinds: physical and legal custody.
Physical custody means the place where the child will live – it can be with either father or mother or both, for the length of time that is pre-determined.
Legal custody is more encompassing and refers to the parent who will make the major decisions in the child’s life. Again, it can be the father or mother, or it can be both for certain aspects of the child’s life.
Sometimes even lawyers and judges themselves get confused. For example, sole physical/legal custody – in some courts – gets branded “joint custody” because the father visits. Realistically, it is not so. In the strictest sense of the word, joint legal custody means that a child lives with his mother full time and hardly ever sees his dad who travels frequently on business; it could also mean that a child lives with his mother but sees his father everyday.
This custody issue therefore can generate a hodge-podge of living arrangements. But for argument’s sake, we’ll consider these definitions for now:
– the child lives with one parent after the divorce. Mothers traditionally obtain sole custody because of the nurturing role they play in child-rearing. Trends today, however, show that fathers can be equally good in raising children so they are granted sole custody. So, to set matter straight, sole custody generally means that one parent is responsible for the child: his upbringing, residence, schooling, discipline and health decisions.
Joint Legal Custody
– this means that duties and responsibilities regarding the child are shared equally by both husband and wife. It has no bearing on the physical home of the child, and covers only the decisions affecting him and his development. The child can divide his time between mother and father in several ways.
Joint Physical Custody
– the child lives in two homes (dad’s and mom’s homes) and the time he spends in each can vary, depending on the agreed arrangement. They commute to and from the two homes based on schedules. Joint physical custody does not mean that the time spent in each parent’s house is split 50-50.
We’ve provided the general guidelines in both the US and Canada regarding the sharing of children after the divorce. These guidelines fall under the logistics side. Let’s go to the more important side – that of spending QUALITY time with the children.
Emphasis on Quality Time
Respecting the legal requirements laid down by governments regarding custody after divorce is one thing, but how each parent plays the co-parenting role is another. Couples who divorce are sometimes caught in a web of anger and disillusionment that they sometimes overlook what’s best for the child.
What we must not lose sight of is this: the child too has a say on how he is to be shared. He or she is just as hurt by the divorce, and should be consulted about this particular issue. So before deciding on what type of custody you want, your child’s needs take top priority.
Other factors come into play: what is the child’s age, at what development stage is the child in, how is the child’s performance in school, how does the child interact with his peers, does the child have special learning needs, and other factors.
It’s good to remember also that while adults can get over the consequences of divorce in a few months or years, children live with the effects of divorce much longer. Wallerstein and Blakeslee say that it is usually the “biggest crisis a child will face while growing up. The notion that children are resilient and quickly recover from divorce is simply misleading.”
What exactly do we mean by quality time?
The answer can be simple and straightforward, or complex and heart-wrenching. Much of it depends on how your child is taking the divorce. The tricky part is knowing whether a child is just putting on a brave front and is really miserable inside, or is reacting as expected: sad, angry and bewildered, and throwing temper tantrums whenever provoked.
Quality time means making the child decide what he wants to do with each parent. The child has already become overburdened by the divorce itself, let’s not add to that burden by imposing activities he does not particularly relish doing. If you think an afternoon circus would bring some laughter but he’s not a circus fan, think of the turmoil he has to go through sitting and watching animals and acrobats for two hours when he’d rather spend it in a game arcade in the mall.
Quality time also means not bombarding the child with questions like: so where did mom have dinner last night, does your dad have a new girlfriend, what has your mom been telling you about our divorce, or did your dad feed you some hotdogs again instead of the sushi I told him to feed you? You’re putting the child in a spot, and you’re only reinforcing the feelings of unpleasantness he had when you announced the divorce. If your child wants to talk about the other parent or volunteer some information, he will – but give him the time and let him take the initiative.
Finally, quality time also means that if it’s your turn to be with the child and you feel uncomfortable being alone with him, don’t introduce him to a houseful of strangers he doesn’t know just to avoid some heart-to-heart talk with him. He may want to spend time alone with you, but by throwing him into the company of others, you alienate him more.
No one said it was easy. We love our children blindly and unconditionally, and sometimes love them too much and show it, fueled by our guilt at not being able to provide them a stable and secure home atmosphere. This could have disastrous effects on their development and in their future relationships.
When sharing children becomes an overwhelming trial for you or they’re exhibiting behavior that you’re unable to cope with, you may want to engage the services of a professional with the right training and experience to help your child weather this phase.
Wallerstein and Blakeslee say, “do your best to create a close relationship with your children, but keep your distance so that you can be an effective parent. Encourage them to help you but to spend time with kids their own age.”