The Children’s Law Reform Act states that the father and the mother of a child are equally entitled to custody of the child. The legislation tells us as a general rule, both parents are equally entitled to custody until separation. However, the parent who throughout the couple’s relationship acted as the primary caregiver to the children is commonly awarded custody.

Custody determinations take into consideration only the best interests of the child. The court will consider the following:

• The love, affection and emotional ties between the child and each person claiming custody;
• The child’s views and preferences (if they can be reasonably ascertained);
• The length of time the child has lived in a stable home environment;
• The ability and willingness of each person applying for custody to provide the child with guidance and education, necessities of life and any special needs;
• The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
• The permanence and stability of the family unit with which it is proposed that the child will live;
• The ability of each person applying for custody of or access to the child to act as a parent;
• The relationship by blood or through adoption between the child and each person who is a party to the application

Pursuant to section 16(10) of the Divorce Act, a custody order should also ensure the child has as much contact with each spouse as is consistent with the best interests of the child. The court will consider the willingness of each spouse to facilitate contact between the child and the other spouse. If there is evidence of your attempts to block your spouse from seeing your child, the court will not view this favourably and it will work against you in their determination of a custody order.

The equal entitlement of a father and a mother to custody is limited by s.20(4) of the CLRA, as that right can be suspended if the parents are separated and the child resides with one of the parents with the consent (express or implied) or acquiescence of the other. If you move out of the home and you leave your child with the other spouse, you could essentially be giving away custody to your spouse. Instead of moving out, stay in another room in the house or even on the couch if you don’t want to lose custody.

The court may award joint custody, where the parents share decision-making for the children, or sole custody, one parent having control over and parental responsibility for the care, upbringing and education of the child.