Is Presumed Custody with the Mother an Outdated Presumption?
Ontario family law judges have to make important decisions about custody. The legislated factors that go into those decisions are well-established, with the predominant one being the “best interests” of the child. But nonetheless there is naturally some judicial discretion and leeway that judges can apply, and – whether admitted or not – these are often influenced by societal expectations, trends and public and policy objectives.
Historically, there seems to have been a common societal preconception that after a separation or divorce, it is in a child’s best interests that sole custody be given to the mother, with access to the father. In some sense, this arises because it is often the mother who has been the primary caregiver to the child after birth and throughout the marriage, and that it is best for the child if that status quo is maintained. However, there are other factors at play: the traditional thinking appears to have been that – in light of the child’s ongoing emotional growth and development– it is the mother who is best positioned to provide for the child’s more esoteric, non-financial needs. This implicit philosophy likely arose as an extension of entrenched gender-roles in an era where stay-at-home moms were once the norm.
The question then arises: Are these unspoken precepts now outdated? And is that fact being reflected in present-day custody orders?
From a practical sense, it is usually one parent who carries the bulk of the parenting responsibilities during the marriage. Still, Ontario family legislation mandates that both parents are notionally to be put on an equal footing in connection with their custody and access rights. And although there is no hard-and-fast “rule” to mandate it, there seems to a basic modern principle that 50/50 or joint custody (where both parents have equal decision-making authority over the child) is the desired norm. In these scenarios, the child may live primary with one parent, or may move between homes in keeping with a specified schedule, but the decision-making is equally shared.
Is this the better way to go? Does this better reflect our collective present-day thinking about the welfare of children?
What are your thoughts?