Who will get custody of my children?

Usually a biological or adoptive parent will get custody of the children. However, the relevant provisions in both the Divorce Act and the Children’s Law Reform Act allow third parties to make applications.

Third parties are usually: grandparents, step-parents, aunts, uncles or other relatives and family friends. It is harder for non-biological and non-adoptive parents to get custody but if they can show that it would be in the best interests of the child to award custody to them it may be granted.

Generally, when it comes to granting custody to a parent the courts will usually prefer to leave the child with the primary caregiver. Although the courts are not gender-biased a trend seems to emerge whereby mothers are mostly granted custody primary residence and fathers are given the right to access.

This trend may be explained by the fact that in most families, mothers seem to be the primary caregivers and so it may be likely that the courts will be reluctant to disrupt that pattern within a family especially if the children are most used to the consistent presence of their mothers in their lives.

Of course, every case is fact-specific and just because it seems as though custody primary residence is usually awarded to mothers who are the primary caregivers this does not mean that the courts will deny custody to a father who falls within that category.