Joint Custody? Parallel Custody? What’s the Difference? And When Can They Work?
The concepts of “joint custody” and “parallel custody” sound similar – and can feature nuances that can be confusing even to Family Lawyers and practitioners, let alone to the separated and divorced parents who are trying to navigate the effective care and custody of the children they have together.
The recent decision in Lall-Persaud v. Persaud afforded the Ontario court a chance to clearly articulate the basic elements of these two child custody formats. This is the first of our two-part blog on this case, and it covers the court’s stated thoughts on the “joint custody” model as one of the available paradigms.
The background facts were these: The couple – Vanessa and Devendra — first met in 2004. When they learned in 2014 that Vanessa was pregnant, they got legally married in a Hindu wedding ceremony performed at the home of Devendra’s parents. They began living together in the matrimonial home – which was also owned by Devendra’s parents – only about a week after the child was born, due to renovations being made.
The court summed up the problem that quickly developed between the newlywed parents:
The parties had great difficulties adjusting to their new life. Both parties accused each other of not being a good partner.
Vanessa objected to her in-laws’ over-involvement in their lives. She complained that Devendra did not treat her in a loving manner, was bullying, disrespectful and both physically and emotionally abusive. She said he was not doing enough around the house and was spending too much time working as a Disc Jockey.
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Conversely, Devendra felt underappreciated by his new wife and felt she as not doing enough around the house while home with their child. He claimed that far from being verbally or physically abusive, he said she was the one who liked to start arguments and be aggressive towards him.
This culminated in a fight just in late 2015, where the police were called but no charges were laid. Vanessa moved out with their child to her parents’, for what she said was a few days; however, she never returned with the child to live in the matrimonial home with Devendra.
Since separation, Vanessa had been the primary caregiver of their child, but Devendra was actively involved. The parents asked the court to determine the issue of custody, and what specific form it should take.
The court began by reflecting on the concept of “joint custody”. Since it requires the parents to make joint decisions regarding their child, it is “an exceptional remedy that would be granted in circumstances where the parties demonstrated cooperation and consent” – including good communication. The court summarized some of the prevailing considerations:
For example, is there a history of day-to-day decisions made between the parties, or are there concerns that will one party will make unilateral decisions or involve the child unnecessarily in the disputes between the parties? There must be a measure of communication and cooperation for a joint custody order to work, although a standard of perfection is not required.
In considering whether joint custody is appropriate, it is not enough to hope that communication will improve once the litigation is completed. A party may also not act unreasonably by impeding access and marginalizing the other parent, only to then claim sole custody on the basis of lack of cooperation and communication.
In the case of Vanessa and Devendra, both parents seemed to accept that this would never work for them since neither of them was asking the court for a straightforward joint custody order. The court agreed that a custody model requiring them to decide parenting issues together would be simply unworkable in light of their existing level of conflict.
Instead, the court closely considered Devendra’s request, which was for joint custody with a “parallel-parenting” regime — where the parents would try to make decisions together, but where each of them has final decision-making in connection with specific issues.
More on that in next week’s blog, when we will revisit the Vanessa and Devendra’s case while highlighting the court’s rules on when parallel parenting should and should not be ordered.
For the full text of the decision, see:
