Contrary to the Ten Commandments of Moses, and contrary to any impression left by the Pulitzer Prize-like prose, we must caution readers that the following was not taken from Mount Sinai so it is not infallible.

(... i.e., it is not legal advice but is general legal information only. Never try to resolve an actual child custody situation based solely on these Twenty-Three Commandments. Especially where child custody is a real issue, you should seek competent professional or legal advice before making any decisions.)

© 1994-2014 Lloyd Duhaime.

happy babyThou shalt also understand that although in black-gown appearance otherwise, judges are human (I know .... I checked once!), and that they are not above error but any - and I mean ANY child custody or guardianship or access case puts them in an unenviable position. Thou shalt respect the Court who by necessity playeth God, no matter what the result and no matter how difficult. The Court shall only consider the best interests of the child; your primary interest too.

The following Twenty-Three Commandments are extracted from the almighty Parliament of Canada's Divorce Act, and from a variety of legal decisions that have since given different twists to the words of that Divorce Act.

  1. Thou shalt not receive a custody order under the Divorce Act unless it is part of a divorce application. Sounds simple enough but you'd never believe the things people try to get away with!
  2. The venerable judge may make a temporary order giving custody to one of the parents while the whole world waits for the final divorce decision and shall call this decision an "interim" or, horrors to the non-Latin folk amongst thou, an "interlocutory" order.
  3. Although only parents usually ask for custody of a child, others (such as grandparents or relatives) can, sometimes requiring special permission of the Court, intervene and ask for custody or access. Natural parents would normally have to abandon a child or be guilty of serious misconduct for them to be denied custody in favour of a grandparent or relative.
  4. The court will look at one and only one thing when deciding where to place a child in the aftermath of a family's divorce breakup: the best interests of the child.
  5. The court will try to grant maximum contact to each spouse taking into account the willingness of the spouse for such contact with the child.
  6. Courts will bend over backwards to ensure that an existing positive relationship between a child and the parent not getting custody, survives the divorce. Access to a child by the non-custodial parent should be encourageth and not cut-off-eth or reduced-eth except where such acceth (sic) is potentially harmful or disruptive to the child. Each case is decided on its merits. For example, one Canadian court denied access to a spouse that had adopted a homosexual lifestyle while another did not consider a homosexual lifestyle to threaten "the best long-term interests of the child."God
  7. The court shall not take into consideration the past conduct of a spouse in determining custody unless the conduct is relevant to the ability to parent.
  8. Thou shalt revere the word custody for it comes with all or the final legal guardian powers including exclusive decision-making powers over the child's upbringing and education.
  9. Thou shalt not assume that just because thou haveth a separation agreement which resolves custody issues, that the court is bound to it. Nay ... the court may change a custody agreement if it is in the best long-term interests of the child. This is rare though.
  10. A Divorce Act court order has effect across Canada and may be enforced anywhere in Canada; and it carrieth weight internationally as well.
  11. A court shall strive to minimize disruption in a child's life when deciding custody. This "preservation of the status quo" concept relates to relationships and not geography and will yield to the best long-term interests of the child. Thus the saying: "he/she who has custody, gets custody."
  12. Thou shalt not split up siblings unless doing so would be in the best long-term interest of one or the other of the children. Some examples are where there is extreme hostility between siblings or where they are far apart in age.
  13. Courts will lean toward giving custody to a parent that can give a child daily-care rather than another parent that may be obliged to leave the child with a stranger for extended periods of time (eg. day-care).
  14. Courts are increasingly fond of "joint custody" arrangements whereby the two divorcing spouses share in major decisions concerning the child (even though one of the spouses provides most or even all of the day-to-day care of the child). But courts will shy away from joint custody where there is a history of disagreement over child-rearing issues (such as on religious grounds).
  15. Although official court documents sayeth they heed-eth it not, thou shalt heed the "tender years doctrine" which says that really young children should be placed in the care of the parent that is the more "nurturing" which, in the vast majority of cases, is the mother. Although denied, the Court heed-eth ... trust me.
  16. Thou shalt disregard the preference of a child under the age of nine in deciding custody. The wishes of a 9-13 year old child is important but not necessarily persuasive. The older a child gets, the more relevant is the child's preference. The 14 year old write-eth his or her own ticket unless nuts.
  17. Thou shalt take note of the powers that courts have to order independent professional assessment (psychologeth) before deciding custody but the court will not be bound by such reports.
  18. Access is different from custody. Access is sometimes called "visitation rights" but be careful: access under the Divorce Act implies a relationship and the right to information concerning the welfare and education of the child.
  19. Access and child support are two different things. A court will not reduce access just because there has been failure to pay child support (famous last words....). The custodial parent cannot unilaterally deny or reduce access rights because there has been an interruption in child support payments. Nor can a parent with access rights reduce child support payments because of difficulties encountered in exercising those rights.
  20. Divorce Act custody orders are never set in stone and can be varied where there has been a change in circumstances "such as warrants a variation of custody having regard only to the best interests of the child."
  21. If thou art the custodial parent, it is thou responsibility to ensure that access and visitation rights are honoured, personal feelings (but not safety) aside. Do not overdo yuckadoo.
  22. The moving of a custodial parent, with the child, to another province or country, remains problematic-eth. Courts still equivocate-eth on this issue. The Divorce Act allows the court to include in the custody decision, an order that the custodial parent notify the other parent 30 days before any change of address. Thou shalt readeth the 1996 Gordon v Goertz decision of the Supreme Court of Canada and thou shalt quoteth from this decision ad nauseum if thou art maketh a relocation application.
  23. Thou shalt not even think about kidnapping. The law shall, rightfully, and with long-arms, kicketh thou ass. Divorce Act orders are binding across Canada and international treaties exist to prevent child abduction, not to mention the reach of criminal law (can you say "haa ... gggue ... convention....). The Criminal Code makes it an offence to abduct a child to spite a custody order.