Following the breakdown of the couple, child custody can be settled amicably as part of a mediation procedure, or be decided by a judge if custody is contested by one of the spouses.
What are the different types of custody:
Exclusive custody is custody of a child who spends more than 60% of the year with one of the parents. In the case of sole custody, the other parent normally has some access rights (for example every other weekend, during the holidays, etc.). Access rights may be supervised if necessary for the safety of the child.
If each parent has custody of the child at least 40% of the year, custody is said to be shared. A judge deciding custody arrangements must do so in the best interests of the child. Since each family context is different, some circumstances will lend themselves better to exclusive custody while others to shared custody.
But what are the specific criterias used by the Superior Court to decide the custody issue?
The fundamental criterion in family law, which oversees all the others, is the best interest of the child. Some factors will be considered to determine what is the best interest of the child: The specific needs of the child; his age; the stability of the child (school, sleep, etc.); the parental capacity of each parent to meet their needs (finance, housing, availability, mental state, lifestyle, etc.); the quality of the relationship between each parent and the child; the wish of the child for his own care (the older the child, the more weight his desire);
On the other hand, the courts prefer not to take into personal factors that do not have a direct impact on the child such as religion, culture, sexual orientation, etc.
Since family law proceedings are lengthy enough before a final judgment, a parent can very quickly request the court to issue a safeguard order to temporarily decide on the right of custody. The safeguarding order is made in case of emergency.
-writing of an application instituting proceedings. It contains the reasons for the application and must be signed and sworn by a lawyer or a commissioner for oaths.
– filing of the application at the office of the Superior Court. A date of presentation to the judge is then recorded in the file.
– a bailiff sends to the other party a certified copy of the application accompanied by a notice of presentation.
-The response of the defendant must be made in a 10-day period.
-debate before the judge of the interim orders that should be rendered (ie during the proceedings but before the final judgment)
-the parties will draft a consent, that is, a document containing all the custody arrangements agreed between the parties. This document will be filed with the Court prior to the hearing.