The most difficult issue for parents going through the agonies of separation and divorce is what arrangements to make for the children.

There has been an unfortunate tendency for one parent to seek sole custody of the children. The other parent is left out in the cold as a mere access parent, with precious little involvement in the children's lives except access every other weekend and the obligation to pay child support, which they resent since they are so excluded.

The state of the law in B.C. used to be that if the mother was the primary caregiver for the children prior to the breakup, and could not get along with her former partner after the breakup, she would almost invariably be given sole custody. In fact, most disputes ended up with a standard order of sole custody to the mother, joint guardianship (a nebulous concept which essentially meant nothing unless it was further defined in the court order itself), and a skimpy amount of access for the non-custodial parent.

Things is changing. Now our courts are using joint custody as a starting point, and only when there is compelling evidence of anger, hostility, abuse and so on, far beyond the normal post-separation chilliness will the courts award one party sole custody. Joint custody does not usually mean that the children live with the parties equal amounts of time. That would be called shared custody, and that has major implications for the payment of child support under the new Child Support Guidelines, and will be the subject of a future article. Usually, the children live for most of the time with the person who was their primary caregiver before breakup, and that person has what is call "day to day care and control" of the children. The other party, however, is expected to have some real involvement in the children's lives, and in the decisions made about their upbringing, so that he (or she) is not a mere access parent reduced to the misery of every second Saturday and no phone call in between. That model, the courts are realizing, does not work, and is not in the best interests of the children. The current Divorce Act reads:

"...the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contract."

That is, if both parties are good parents but one is bitter and tends to prevent the children from seeing the other, he or she may not be given custody or day to day care and control.

By the time the children reach their teenage years, they are increasingly allowed by the courts to decide which parent they want to live with, if the parents are in dispute. The children, by the age of twelve or thirteen, are by that time able to vote with their feet. By that time as well, however, as most parents realize to their chagrin, the children are much more focused on their peers than their parents, and the battle for the children is lost by both sides. They -- the children that is -- grow up.

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