Custody battles are some of the most emotional and difficult disputes in family law. They happen when parents cannot agree on who should care for their children after separation or divorce. Custody battles involve detailed legal processes. They also focus on the best interests of the child but can create emotional strain for everyone involved.
In this article, Lexpert will talk about custody battles and cover why they happen. We will also talk about what courts consider and how families can prepare. We’ll help you better understand the process so you can concentrate on reducing the stress that comes with it.
What a custody battle means
A custody battle happens when parents cannot agree on custody arrangements for their children. Instead of working things out privately or through mediation, the matter goes to court. Judges then decide who will have legal responsibility and day-to-day care for the children.
For families, this means decisions about matters such as:
- where the child will live
- who makes important choices
- how much time each parent spends with the child
These would be decided by the court instead of the parents themselves. This can feel overwhelming, but the laws on child custody are designed to focus on the child’s needs first.
Watch this video of a legal expert in custody battles to learn more:
Courts might award sole custody to one parent or joint custody to both parents. Sole custody gives one parent primary responsibility, while joint custody means both parents share duties in some form. Every situation is unique, and outcomes depend on the facts of the case.
How much does a custody battle cost in Canada?
It can cost around $1,000 or more. The cost of a custody battle can vary widely depending on the complexity of the case and whether the dispute is resolved quickly or goes to trial. The province or location can also be a factor.
Why custody battles happen
There are many reasons parents end up in custody battles. Sometimes it is due to disagreements about parenting styles. Other times, it involves concerns about safety, substance abuse, or relocation. Common reasons include:
- disagreements about where the child should live
- disputes about schooling or healthcare
- concerns about one parent’s ability to provide a safe environment
- situations where one parent plans to move far away
Custody battles often arise when trust between parents breaks down. In these cases, courts must step in to protect the child’s interests.
What is the biggest mistake in custody battle?
When you’re going through a custody dispute, it’s easy to make mistakes that can hurt your case and your child’s well-being. Courts always put the child’s best interests first, so it’s important to stay focused on what really matters. Here are five mistakes to watch out for:
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Speaking badly about the other parent: Saying negative things about the other parent, especially in front of your child, can harm your child emotionally and may reflect poorly on you in court. It’s better to keep conversations positive and focus on your relationship with your child.
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Withholding access without a good reason: Stopping your child from seeing the other parent without a valid reason can backfire. Courts expect both parents to support the child’s relationship with each parent unless there’s a real risk of harm.
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Poor communication with the other parent: Not keeping the other parent informed about important things like school, health, or activities can disrupt your child’s life. Good communication shows the court you can work together for your child’s benefit.
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Posting about the case on social media: Sharing details or frustrations about your custody battle online can be used against you. Always think before you post and avoid saying anything that could be seen as irresponsible.
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Ignoring court orders: Not following what the court has decided can lead to serious consequences, including losing time with your child. Always respect court orders and get legal advice if you need changes.
Courts aim to make sure that the children have a safe and supportive environment, regardless of the conflict between parents. Still, they can always choose to go for a more peaceful arrangement. Check out this guide to peaceful child custody disputes:
Consulting an experienced family lawyer can help parents find the best path forward, whether through a custody battle or a peaceful arrangement.
How courts handle custody battles
The process of a custody battle often begins when one parent files a petition with the court. Both parents present their arguments, and sometimes experts such as psychologists or social workers are involved. Some of the steps can include:
- Filing for custody: One or both parents submit paperwork to the court
- Mediation or negotiation: Courts often encourage parents to try mediation before a full trial
- Court hearings: Parents present evidence, witnesses, and arguments
- Evaluation reports: In some cases, experts prepare reports about the child’s best interests
- Judge’s decision: The court issues a custody order that must be followed by both parents
This process can be lengthy and stressful, but it ensures a neutral decision is made when parents cannot agree.
Mediation as an alternative
Not every custody dispute has to turn into a full battle. Mediation is often used as an alternative. A neutral mediator helps parents communicate and reach agreements about custody. Mediation is less adversarial, faster, and usually less expensive than going to court.
Mediation is not possible in every case, especially when safety is an issue. But it can reduce stress and help parents maintain a better long-term relationship for the sake of their children.
The emotional impact of custody battles
Custody battles are emotionally draining for both parents and children. Parents might feel anger, fear, or sadness, while children might experience confusion and anxiety. Prolonged disputes can damage parent-child relationships and make children feel caught in the middle.
It is important for parents to protect their children from conflict during this time. Counseling, support groups, or family therapy might help. Some might recommend keeping conversations with children simple and reassuring, avoiding blame, and focusing on stability.
How parents can prepare for a custody battle
Preparation is key in custody disputes. Parents should gather documentation that shows their involvement in the child’s life. This might include school records, medical reports, and evidence of daily caregiving. Courts look at patterns of involvement, not just promises.
Parents should also:
- maintain consistent routines for the child
- work with an experienced family lawyer
- avoid negative comments about the other parent in front of the child
- focus on what benefits the child rather than personal grievances
Good preparation not only strengthens a parent’s case but also shows the court a commitment to the child’s well-being.
Custody battles and relocation issues
One of the most challenging custody disputes arises when a parent wants to relocate. If a move would significantly change the child’s living situation or time with the other parent, courts must weigh the pros and cons carefully. Judges can often consider:
- the reasons for the move
- the impact on the child’s education and support network
- the ability to maintain contact with the non-moving parent
Relocation cases show how complex custody battles can become, as they involve balancing parental rights with the child’s stability.
The Divorce Act
After the amendments of Canada’s Divorce Act and starting March 1, 2021, the terms “child custody” or “child access” are now replaced with the more family law-leaning terms of “parenting arrangement” or “parenting time,” respectively.
Under Canada’s provincial and federal family laws such as the Divorce Act, “custody battles” (which might fall under the term “corollary relief proceeding”) is where a parent or both parents, and a third party, might apply for “child custody” (now called “parenting arrangement”).
A favourable parenting arrangement might be reached through:
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a court order issued by the judge outlining the arrangement, parenting plan, or contact order for the family
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a family dispute resolution process, where it is the parents themselves who come up with the arrangement or parenting plan
Who wins most custody battles?
Statistically speaking, most couples agree that the mother should have a preferential arrangement over their child or children. This happens more commonly in extra-judicial processes (out of court). Parents could reach a mutual agreement outside of the court, with or without the help of a family mediator, or after an evaluation on the family situation was made.
In Canada, custody battles might be done judicially (which might fall under the “corollary relief proceeding” of the Divorce Act) or extrajudicially (written or verbal arrangements outside the court, with or without a family mediator or conciliator).
According to surveys, Canadians tend to rely on extrajudicial settlement of custody battles, although the numbers of parents applying for corollary relief proceedings are rising. This is because a judicial custody battle might be legally enforced once there has been breach of the parenting order.
What are the rules for child custody in Canada?
A parent who does not want joint custody should apply for a different parenting arrangement (Section 16.1(1)(a)) through a judicial custody battle (or corollary relief proceeding) or have their existing arrangement amended or changed (Section 17(1)(b)).
If a parenting arrangement was reached by both parents outside a court proceeding, the parent who wants their existing arrangement changed might also ask the other parent for its amendment.
The Divorce Act has prescribed rules against the relocation, supervision, and removal of the child. The final parenting order from the judge or court might state that consent from the other parent is required.
What do judges look for during a child custody case in Canada?
According to the Divorce Act, the ultimate consideration of judges in deciding on child custody is the best interests of the child (Section 16(1)).
This is in addition to the child’s needs; views and preferences; and cultural, linguistic, religious and spiritual upbringing and heritage, among others.
Moving forward after a custody battle
Custody battles are never easy but knowing what to expect can help you make better choices for your family. The most important thing is to keep your child’s well-being at the centre of every decision. Take time to learn about your rights and the legal process.
Remember, even in difficult times, you can work toward a safe and supportive future for your child. With assistance from a trusted legal professional, you can move forward and focus on what matters most—your family’s happiness and stability.
For more about custody battles, parenting arrangements, and more, check out our Legal FAQs page.