Custody can be in relation to family law
or in regards to a prisoner
In regards to family law,
a person with custody has the "sum total" or "full bundle" of parenting powers and responsibilities, exercised exclusively, with respect to the raising and care of the child
, decisions and provision of physical, moral and emotional health, personal care, control, place of residence, discipline, religion, education, medical treatment, property, and naming of the child
In Hewer v Bryant, a 1970 English case, quoted in Read v Read (Alberta), the British Court used these words:
"In its wider meaning, the word custody is used as if it were almost the equivalent of guardianship in the fullest sense whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court.
"I use the words fullest sense because guardianship may be limited to give control over the person or only over the administration of the assets of an infant.
"Adopting the convenient phraseology of counsel, such a guardianship embraces a bundle of rights or, to be more exact, a bundle of powers which continues until a male infant attains (the age of majority) or a female infant marries. These include the power to control education, the choice of religion and the administration of the infant's property. They include entitlement to veto the issuance of a passport and to withhold consent to marriage. They include, also, both the physical control of the infant's personal property until the infant attains years of discretion...."
Ontario's Children's Law Reform Act
is typical of the law in this area and provides that:
"A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child".
Not all jurisdictions favour the term "custody"; some preferring the word guardianship or "parental responsibility".
When custody is given to one parent, it is often accompanied by the redundant term "sole", as in sole custody, which confirms that the custody is given to a "sole" or single parent.
Custody is not necessarily granted to a natural parent. The usual rule of thumb is custody is distributed taking into account the best interests of the child(ren).
Custodial rights are often shared by the two parents who exercise those rights jointly or severally (as in joint custody or shared custody). In fact, what this usually means is that a child bounces from the home of one parent to the home of the other as per a schedule but in regards to significant decisions affecting that child, both parents exercise that authority with the implied obligation to consult with each other before doing so. For that reason, a court would be reluctant to order joint custody or joint guardianship where the parents cannot get along.
Some jurisdictions, as in Canada, when granting a custody order and nothing more, give the whole package of parental rights to the designated custodial parent, a "sole" custody award. But these orders are often coupled with a joint guardianship
clause which effectively distributes custody between the sole custodial parent and the other joint guardian parent.
Again, in Canada, further legislative anomalies obscure the law and make discussion of the term "custody" within family law proceedings by lawyers, judges or lay litigants, exceedingly difficult.
The federal Divorce Act
does not use or refer to guardianship and then defines custody in a circular fashion: "care, upbringing and any other incident of custody" and, later, by elimination by stating that an "spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child". As stated in Re Wong
(2000), anyone given custody under that statute, also has full guardianship powers.
In British Columbia, contrary to the Ontario legislation noted above, preference is given to the term "guardianship", such that when proceeding with custody matters outside of the Divorce Act, "a guardian is both guardian of the person of the child and guardian of the estate of the child".
In Young v. Young, Justice Southin of the BC courts reflected that:
"A guardian has the right to say what books the child shall read, where the child shall go, whom the child may see or, in other words, the plenitude of parental power and nothing in that statute intrudes upon that plenitude".
Further, for purposes of child support, the Canadian federal regulation on the topic, the Child Support Guidelines defines split custody
as "where each spouse has custody of one or more children" (also known as divided custody
), and shared custody
as "where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year".
In 1998, a committee of the Senate of Canada proposed that "the term custody and access no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term shared parenting, which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms custody and access." That report gathers dust.
Parents living separate and apart are not required to seek a Court determination of their respective rights in regards to their children. Many wisely do it home-made justice style, either by coming to a verbal or written agreement or continuing a pattern of trust and consultation between them right through until their child becomes an adult.
In regards to criminal law, custody refers to the confinement, detention or imprisonment of a person (as in "she's 'in custody'"). From R v Van Wyk:
"An accused in the custody of the state is not only physically restrained but also, by virtue of restriction of liberty, has a diminished capacity to withstand the influences of others.... Custody imports a relationship of dependency - the prisoner cannot walk away - the prisoner relies upon his or her jailers for ... the basic necessities of life...."
In regards to property law, from State v Coffin 9 Idaho 338 (USA, 1903):
"Custody means a keeping, guarding, care, watch, inspection, preservation, or security of a thing, and carries with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected."
For items of property, possession includes custody but custody does not not necessarily include possession.
- Children's Law Reform Act of Ontario, R.S.O. 1990 Chapter 12
- Duhaime, Lloyd, Family Law
- Duhaime, Lloyd, Legal Definition of Guardianship
- Family Law Relations Act, R.S.B.C. Chapter 128
- Federal Child Support Guidelines, SOR 97-175
- Gibson v St. Paul Fire & Marine Insurance Company 117 W. Va. 156 (1936)
- Hartley v Hartley 35 N.C.R. 262 (Pennsylvania)
- Hewer v Bryant 1 Q.B. 357 (1970)
- Read v Read 2 W.W.R. 25 (A.B.C.A. 1985)
- Re Wong 2000 B.C.S.C. 1536
- R v Van Wyk (1999) 6 M.V.R. 4th 248
- Special Joint Committee on Child Custody and Access, Senate of Canada, For the Sake of the Children, December 1998
- Young v. Young 1990 29 R.F.L. 3d 113 (B.C.C.A.)