Ben Affleck and Jennifer Garner Divorce: Joint Custody

After months of rumours and speculation, actors Ben Affleck and Jennifer Garner have confirmed that they are divorcing. The news comes one day after their tenth wedding anniversary. According to TMZ, the divorce is amicable and the parties will work things out with a mediator and their business managers. The two megastars plan to have joint custody of their three children, Violet, 9, Seraphina, 6, and Samuel, 3.

In Ontario, joint custody means that both parents must agree on major decisions that affect a child. The parents must agree on issues including:

  • where a child will go to school,
  • the religion he or she will practice (if any),
  • if the child should undergo a health treatment, and
  • any other major decision concerning the child's welfare.

Sometimes, parents with joint custody may divide the decision-making so that one parent can make all the decisions regarding one aspect of the child's life, such as school and daycare, while the other parent will make decisions on a different aspect of the child's life, such as extracurricular activities or participation in a religious community. In other cases, one parent has sole custody and the other parent retains the right of access, which is the right to make inquiries and be given information regarding the child's welfare.

There is a common misconception that joint custody means that the child spends an equal amount of time with both parents. However "legal custody" refers only to the right of a parent or guardian to make major decisions regarding a child's welfare. This is separate and distinct from "physical custody," which denotes where the child lives and which parent has physical care of the child. If Garner and Affleck's children live with their parents for roughly equal periods of time after separation, this schedule is called "shared custody."

In Ontario, a court must make an order regarding physical custody and legal custody in accordance with the best interests of the children. Section 24 of Ontario's Children Law Reform Act lists various factors that a judge must consider when making such an order, including:

  • the love, affection and emotional ties between the child and each parent;
  • the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  • the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing; and
  • the ability of each person applying for custody of or access to the child to act as a parent.

If Garner and Affleck are not able to finalize a parenting agreement, either party may apply to a court in their state for an order for custody.

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