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Don’t be an April fool about how judges determine custody arrangements!

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Family law

Helen from Saint-Eustache would like to know: What are the criteria that a judge looks at when establishing custody and/or access rights for parents?

The Court, when hearing a case on custody issues, must take into consideration several criteria before it pronounces its judgment.

The Court, first and foremost, looks at the best interest of the child in order to try to establish the most appropriate custody arrangements.

In fact, the Civil Code of Quebec provides, in section 33, that:

“Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights.
Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child’s age, health, personality and family environment, and to the other aspects of his situation.”

Usually, when a child has reached 11 years of age, the judge may name an attorney to represent a child if a child has the necessary maturity in order for the child to be able to express his desires with regard to his custody arrangements.

Once a child reaches 13 or 14 years of age, their opinions and desires will become primordial in the decision that the judge will make.

When rendering a decision on custody, the judge will not only look at the physical and material aspects of the child’s needs, but the judge will also have to take into account the general welfare of the child, be it psychological, spiritual or emotional.

The Court will try, to the extent possible, to make a decision that will allow the child to grow up in a positive matter in terms of education, health and his or her general well-being.

With regards to access rights or visitation rights of the non-custodial parent, the judge will also look at the best interest of the child. It is well established that it is in the best interest of the child to have such access rights in order to ensure that the non-custodial parent has sufficient contact with their child.

Gianina Fuschini, Attorney-at-Law
Alepin Gauthier Avocats Inc.

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