American rock singer-songwriter and musician Melissa Etheridge, who has won two Grammy Awards and one Academy Award, has separated from her wife Tammy Michaels after nine years of marriage. The parties have 3 year old twins together, Miller and Johnie Rose. Etheridge says the most difficult part of her separation from her wife was telling the children and the subsequent effect it had on them. Sources claim that the parties would like to jointly parent the children.
Split Custody vs. Shared Custody in Ontario
First it is important to note that 'custody' does not necessarily refer to physical custody of the children. In Ontario, custody involves the right to make important decisions affecting the child's welfare on matters such as health, religion, education and general upbringing. Each case is decided on its individual merits in determining who will get custody and who will have access of the child and the Court will consider theoverall best interests of the children.
Split custody refers a situation where Melissa would have greater then 60% of the time with one of the twins and Tammy would have greater then 60% of the time with the other twin. Unfortunately when split custody is ordered the children are divided from one another and the courts may be of the view that this is not in the children's best interests.
With respect to child support in a split custody situation, the courts will look at the Federal Child Support Guidelines. The Guidelines provides a "formula" for determining child support in situations of split custody. The amount that is ordered is the difference between the amounts that each parent or spouse would otherwise have had to pay if a child support order were sought against each of the parents.
In the alternative, Melissa and Tammy may seek shared custody of the children. Shared custody refers to the amount of time the children spends with each parent and it is relevant to child support since it does not affect the custodial parent's rights and responsibilities with respect to decision-making. If for example, Melissa and Tammy have joint custody of the child (i.e. a joint right to make decisions regarding the children's upbringing) the access parent may still have shared custody if the child spends at least 40% of the time with him or her (may include weekends, overnight visits and parts of vacations).
The Federal Child Support Guidelines give the court the discretion to reduce the amount of child support payable once the 40% threshold requirement is met.
Parents should always be aware of the effect of divorce on the children. A divorce can be difficult on them and it is important for Melissa and Tammy to address any questions and/or concerns the children have about the divorce, especially if they are being separated from one another. Given that the children are only 3 years old they may be too young to fully understand the situation, however as they get older signs of the effects of the divorce may surface. If possible, the parties should work together in addressing the children's concerns and more importantly, they should ensure that they do not expose the kids to adult conflict or speak ill of one another in front of the children.