Separation and Divorce

Child Custody Decisions: Criteria Used and Types of Custody


When parents break up, they don’t always agree on who will have custody of the children. If they ask a judge to decide, what will the decision be based on?

Factors Judges Use When Deciding Custody

The most important factor in deciding who gets custody is the best interests of each child.

To find out what is in a child’s best interest, judges consider these factors, among others:

  • children’s ages
  • needs of the children
  • each parent’s ability to meet the children’s needs
  • relationship between the children and each parent
  • relationship between the children and other family members
  • keeping stability in children’s lives
  • children’s physical and mental health
  • physical and mental health of the parent who wants custody
  • time each parent has available to spend with the children
  • lifestyles of each parent, if this has a direct impact on children
  • situation of the brothers and sisters, and keeping all the children together if possible
  • willingness of each parent to help the children have a good relationship with the other parent
  • preferences of the children

Some Factors Judges Don’t Use When Deciding Custody

The judge doesn’t take these factors into account when deciding which parent gets custody:

  • whether parents are living with new partners or have remarried
  • parents’ sexual orientation
  • previous actions of one parent concerning the other (for example, adultery)
  • parents’ cultural background

However, the judge can keep these factors in mind if they affect the children’s best interests. For example, the judge can take into account the fact that one of the parents had been violent towards the other in the past.

Types of Custody

Judges must decide which type of custody is in the best interest of the children, given all of the circumstances. These are the two types of custody:

  • joint custody
  • sole custody, with or without visiting rights

Joint Custody

“Joint” or “shared” custody is when a child spends between 40% and 60% of the time with each parent, that is, between 146 and 219 days each year.

Sole Custody

“Sole” custody is when a child spends more than 60% of the time with only one parent, that is, more than 219 days each year.



joint custody

between 40% and 60% with each parent

sole custody

more than 60% with only one parent

In these cases, the judge can give visiting rights to the other parent. These rights let the other parent have contact with the child, even if this parent does not have custody.

Divorce: Vocabulary Change in the Law

Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.

Joint Custody Versus Sole Custody

Judges cannot favour one type of custody over another. When deciding on custody arrangements, they must always determine what’s in the best interests of the children in the circumstances.

There is no one-size-fits-all custody arrangement. Why? Because each child is different, with different needs and different situations.

For joint custody to be in the best interests of a child, both parents must

  • be able to give the child the stability he or she needs to develop properly,
  • be able to take care of the child,
  • communicate with each other without arguing, and
  • live close to each other.