The Berry Martinez Divorce: Child Custody and The Child's Best Interests

The internet is all a flutter after Extant leading lady, Halle Berry and her husband, male model Olivier Martinez announced earlier this week that they are divorcing after two years of marriage.

They both seek joint custody of their two year old son, Maceo. However, with respect to visitation, Berry requests that they "share custody as in the best interests of the child."

While at first glance, Berry's request for joint custody and sharing of custody for visitation may seem confusing, she is in fact making two distinct requests.

In Ontario, Berry and Martinez's request for joint custody would refer to the right of a parent (or guardian) to have decision making authority with respect to a child's welfare and upbringing.

When parents have joint custody of a child, they share authority over major decisions such as the child's education, religion, and health. For a joint custody arrangement to be workable, the parents must be able to effectively communicate and cooperate to make decisions for the sake of the child. These arrangements can be flexible and tailored to the circumstances. For instance, if there is some conflict between the parents, decision making authority can be allocated to each parent on an issue-by-issue basis, or they can apply to the court to have the court make a determination if there is serious disagreement over a certain topic. Day-to-day decisions are usually made by the parent who has care of the child at the time.

In contrast, if a parent has sole custody, they alone have complete decision making authority for the child. The other parent merely has the right to access which is limited to the right to information about the child's welfare and to make inquiries.

However, even if an Ontario judge were to grant Berry and Martinez joint custody that does not automatically grant them equal time with the child. In Ontario, a request such as Berry's regarding "sharing custody" for visitation likely refers to "physical custody" of Maceo which is distinct from decision making authority. She is essentially asking a court to determine living and access arrangements such as which parent Maceo will live with or who will have physical care of the boy.

Berry's reference to the "best interest of the child principle" falls in line with how Ontario courts decide issues relating to children in family law. Under the Canadian Divorce Act, the only consideration before the court in deciding custody matters is the best interests of the child. While the Divorce Act does not provide guidance as to the meaning of "best interest of the child," section 24 of the Children's Law Reform Act provides a list of non-exhaustive factors that judges must consider including:

  • The love, affection, and emotional ties between the child and each parent, other members of the family residing with the child, and persons involved in the child's care and upbringing;
  • The ability and willingness of each parent applying for custody to provide the child with guidance and education, the necessities of life, and any special needs of the child;
  • The child's views and preferences, if they can be reasonably ascertained;
  • Each parent's proposed plan for the care and upbringing of the child; and
  • Each parent's ability to act as a parent to the child.

A parent's past conduct in this determination is only relevant if it affects their ability to parent. People.com reports that Martinez may have a violent temper that could have played a role in the couple's decision to divorce. If there was any domestic violence in the Berry and Martinez household, an Ontario court would necessarily take it into account as violence towards a spouse, child, or family member could be an indicator of a person's ability to act as a parent.

In the end, it is likely that Berry and Martinez will be granted their request for joint custody if this matter were heard in Ontario. At least publicly, they appear to remain amicable with respect to the separation and Maceo. Whether any allegations of domestic violence arise or are made in the process may affect an Ontario judge's decision whether or not to grant an equal time arrangement or otherwise.

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