Divorcing couples often find themselves swimming in a sea of emotions, which can run high before, during, and after a divorce. When emotions are overwhelming, our ability to think clearly becomes impaired. For the sake of the children, it is important to clear away the emotional fog so that we can focus on the practical logistics, such as how to divide the children’s time between each spouse with the least disruption.
Caveat:
This article is simply a primer on child-sharing arrangements for divorcing couples. It should not be interpreted as legal advice. For legal guidance, consult a lawyer for legal advice.
Our goal is to provide you with information to help you navigate decisions about sharing the children after a divorce. We will discuss key terms and factors to consider, along with an overview of the Canadian and U.S. positions on child-sharing arrangements. Ultimately, it will be up to you and your spouse to discuss these issues and raise any concerns with a lawyer if you are unclear about any aspect of the law.
Sharing the Children After a Divorce – The Canadian Position
Family law lawyers are typically the experts on child-sharing arrangements. While these matters can sometimes be settled amicably without going to court, there are legal aspects that must be addressed. Federal and provincial laws apply in specific issues, meaning the province where you live and file for divorce will influence child-sharing arrangements.
If you’re in Canada and undergoing a divorce, it’s important to be familiar with a few key terms.
The website of the Canadian Department of Justice provides guidelines on child custody and child support. However, they emphasize that this information should not be taken as legal advice. Terms like “parenting arrangements,” “shared custody,” and “sole custody” are just a few of the terms you may encounter.
We’ll look at these terms separately:
Parenting arrangements
These refer to the post-divorce or post-separation arrangements made by parents for their children. These arrangements define, among other things, where the children will live and how decisions about education, healthcare, and other important matters will be made.
Shared custody
This arrangement applies when both parents care for the child for at least 40% of the time within any 12-month period.
Sole custody
Sole custody applies when the child lives with one parent for at least 60% 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 may take precedence over the Divorce Act. This provision is called “designation.”
The U.S. Position
One writer believes the word “custody” can be confusing. Regardless, it remains the primary issue to be decided in a divorce.
To minimize confusion, we’ll clarify that custody can be divided into two types: physical and legal custody.
Physical custody refers to the place where the child will live. It can be with either the father, the mother, or both, for a predetermined amount of time.
Legal custody is more comprehensive and refers to the parent responsible for making major decisions in the child’s life. This can be either the father or the mother, or both, depending on the situation.
Sometimes even lawyers and judges get confused. For example, some courts may label sole physical/legal custody as “joint custody” simply because the father has visitation rights. However, in the strictest sense, joint legal custody means both parents share decision-making authority, even if the child lives primarily with one parent.
This custody issue can result in a variety of living arrangements. For clarity, let’s consider these definitions:
Sole Custody
In this arrangement, the child lives with one parent after the divorce. Traditionally, mothers are granted sole custody due to their nurturing roles in child-rearing. However, trends now show that fathers can also be granted sole custody, as they can be equally effective in raising children. Sole custody generally means that one parent is responsible for decisions related to the child’s upbringing, residence, schooling, discipline, and healthcare.
Joint Legal Custody
This means that both parents share duties and responsibilities concerning the child. It has no bearing on the physical residence of the child, and only pertains to decisions affecting the child’s development. The child may divide time between the parents in various ways.
Joint Physical Custody
In this arrangement, the child lives in two homes—those of both parents—and the time spent in each can vary, depending on the agreed-upon schedule. Joint physical custody does not necessarily mean a 50-50 split.
We’ve provided the general guidelines in both the U.S. and Canada regarding child-sharing after divorce. These guidelines focus on the logistics. Now, let’s turn our attention to the more important aspect: spending QUALITY time with the children.
Emphasis on Quality Time
Respecting the legal requirements surrounding custody is one thing, but how each parent plays the co-parenting role is another matter entirely. Divorcing couples often find themselves caught in a web of anger and disillusionment, sometimes losing sight of what is best for the child.
It’s crucial to remember this: the child also has a say in how they are shared. Children are just as affected by the divorce and should be consulted about this issue. Before deciding on the type of custody, their needs should take top priority.
Other factors come into play, such as the child’s age, developmental stage, school performance, interactions with peers, and any special learning needs.
It’s also worth noting that while adults may eventually move on from the consequences of divorce in a few months or years, children often live with its effects much longer. Wallerstein and Blakeslee emphasize that divorce is often “the biggest crisis a child will face while growing up.” The idea that children are resilient and quickly recover from divorce is misleading.
What Exactly Do We Mean by Quality Time?
Quality time can be both simple and complex. It largely depends on how the child is processing the divorce. The challenge is knowing whether the child is merely putting on a brave face or truly struggling with feelings of sadness, anger, and confusion.
Quality time means allowing the child to decide what to do with each parent. Don’t burden them with activities they don’t enjoy. If your child isn’t a fan of the circus, don’t force them to attend one just to create a “fun” experience. Instead, consider activities they enjoy, like going to a game arcade, if that’s what they’d prefer.
Quality time also means avoiding questions that put the child in an uncomfortable position, such as, “Did mom have dinner with anyone last night?” or “Did dad feed you hotdogs again instead of the sushi I told him to feed you?” Let your child open up on their own terms. If they want to talk about the other parent, they will do so when they are ready.
Finally, if it’s your time to spend with the child and you feel uncomfortable being alone with them, don’t distract them by introducing them to unfamiliar people. They may want to spend quiet time with you, but introducing them to strangers only adds to their alienation.
No one said it was easy. We love our children deeply and unconditionally, and sometimes we express this love too much, driven by our guilt over not being able to provide a stable home. This can have detrimental effects on their development and future relationships.
If co-parenting becomes overwhelming or if your child is exhibiting behaviors you cannot cope with, it may be time to consult with a professional who has the experience and training to help your child through this difficult phase.
Wallerstein and Blakeslee advise, “Do your best to create a close relationship with your children, but maintain a healthy distance so you can be an effective parent. Encourage them to spend time with kids their own age.”
