Discussing with Mavis on Custody and Access

Jon Quaglia Family Law

Mavis thinks the marriage may be over…but what does custody mean?

Mavis has been struggling with the state of her marriage for more than six months. She and her husband have unsuccessfully attempted some counselling. She thinks the marriage may be over, but Mavis is unsure what this means. Mavis has not confided in many people about her circumstance, but the people she has spoken with suggest she contact a lawyer to discuss her concerns. My office has been suggested as a place to start the discussion.

At our first meeting, Mavis is clear she only wants to know how custody is determined and whether at the end of this process I can assure her that her children will primarily reside in her care.

I start by explaining the meaning of the word custody to Mavis. Custody does not mean the amount of time that either parent spends with their children. What custody does mean is the ability to make legal decisions for the children: decisions about which school system and particular school the children are enrolled in; consenting to non-emergency medical treatment; and the child’s religious affiliation. Then, I explain to Mavis that there are two ways that custody can be achieved. An agreement between the parents of the children or through a judge. The “system” (judges and lawyers) prefer if the husband and the wife can resolve the issue of custody on their own. If a Judge has to decide, the Judge considers the roles of the parents during the relationship, the roles of the parents since separation, the ability of the parents to work together, each parent’s plan of care for the children, and (depending on the age of the children) the children’s wishes.

Next, we discuss where the children will live (residency and access are the terms used to clarify where the kids reside and how much time they spend with each parent). Again the “system” prefers if the parents work out an agreement. However, if the parents are unable to reach an agreement a judge will impose a schedule, after reviewing the same factors outlined for custody. Mavis looks overwhelmed. Mavis asks me if I will fight for her children to live with her. My answer is clearly and unequivocally “yes”. I assure her that I am “on her team”, and will help her in any legal matter throughout this process. In Mavis’ circumstance because she has been a “stay at home” mother while her husband has maintained full-time job and assisted a lot on his parents’ farming operation I advise her that in my opinion she has a strong argument that the children should continue to reside primarily in her care.

Mavis seems relieved and I encourage her to take as much time as necessary to decide whether or not to proceed. I confirm that when she is ready to proceed we will discuss the issues of child support, spousal support, and the division of assets. I explain to Mavis that if she and her husband reconcile, that is a great thing and I will be happy for her. However, if she and her husband decide the marriage has come to a conclusion, then she needs to come back to see me. I make it very clear to Mavis, and all of my other clients, that whatever she decides, my team and I will support her throughout this process.

If any readers are having the same thoughts as Mavis, do not hesitate to book an appointment.

Thanks for reading. Talk soon,

-Jon