Custody and parenting time explained: the words, the decisions and the schedules

If you are reading this, you are probably trying to work out what you are entitled to, what your ex is asking for, or what a lawyer meant when they used a word you did not recognise. The vocabulary matters less than it seems. Underneath every term, both countries are asking the same two practical questions, and once you can see them clearly the conversation with your co-parent gets easier.

One thing to hold onto first: the words are not a scorecard. "Sole" or "primary" does not mean a parent won, and "parenting time" is not a lesser prize than "custody". Courts in both countries are trying to describe what works for a particular child, not to rank the parents.

Canada: the words since 2021

On March 1, 2021, amendments to the federal Divorce Act came into force. The old terms "custody" and "access" were replaced with language that describes what parents actually do:

• Decision-making responsibility is responsibility for significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extracurricular activities. It can be shared, given to one parent, or divided (for example, one parent decides about school, the other about health).
• Parenting time is the time a child spends in a parent's care, including time the child is at school or daycare during that parent's time. During your parenting time you make day-to-day decisions, such as bedtimes, meals and who picks up from soccer.
• Contact is time with a child for someone who is not a parent with parenting time, such as a grandparent. A contact order is how a court sets that time when the family cannot agree.

The Divorce Act applies to married spouses who are divorcing. Unmarried parents, and married parents who are separating but not yet divorcing, are usually covered by provincial law, and the provinces use their own words:

• Ontario amended its Children's Law Reform Act on the same date, March 1, 2021, to use decision-making responsibility, parenting time and contact, so federal and Ontario language now line up.
• British Columbia's Family Law Act talks about guardianship, parental responsibilities and parenting time. Only a guardian has parental responsibilities and parenting time; other people can have contact.
• Alberta's Family Law Act uses guardianship and parenting orders, which set out decision-making and how a child's time is divided between guardians.
• Quebec has its own civil law tradition, with concepts such as parental authority and custody in the Civil Code.

Old orders and agreements that say "custody" and "access" are still valid. If yours uses the old words, nothing needs to be redone just because the vocabulary changed. You can check your province's terms on the FairWell province and state pages.

The US: legal and physical custody

In the United States, custody is a matter of state law, and each state uses its own terms. The most common framework splits custody in two:

• Legal custody is the right and responsibility to make decisions about a child's health, education and welfare. Joint legal custody means both parents share those decisions. Sole legal custody means one parent makes them.
• Physical custody is about where the child lives. Joint physical custody means each parent has significant periods of time with the child. Sole or primary physical custody means the child lives mainly with one parent.
• Visitation is the traditional word for the other parent's time when one parent has primary physical custody. Many states and courts now prefer "parenting time" because it sounds less like a guest pass.

Some states have dropped "custody" from their statutes entirely. Illinois, for example, now uses "allocation of parental responsibilities", split into significant decision-making and parenting time. If your state's forms use unfamiliar words, the two underlying questions are still the same: who decides, and where the children are.

It is common in both countries for parents to share decision-making while the children spend more time in one home. Those two pieces are separate, and you can agree on them separately.

How decisions actually get made

Shared decision-making does not mean you have to agree on everything. Day-to-day choices stay with whichever parent the child is with. Shared decision-making covers the big, long-term questions: changing schools, a non-urgent medical treatment, therapy, religious upbringing, or a costly activity that affects both homes' schedules.

A good parenting plan says how those decisions will be made, not just who has the right to make them. Practical clauses that help:

• How you raise a decision. For example, in writing, with any information the other parent needs, and a set time to respond (for example, seven days for non-urgent matters).
• What happens if you disagree. A step before court, such as mediation or a parenting coordinator, and sometimes a tie-breaker in one area. Tie-breakers work best when the decision maker still has to consult first.
• Emergencies. Either parent can consent to emergency treatment and must tell the other as soon as possible.
• Information sharing. Both parents can usually get school and medical records directly, whatever the decision-making arrangement.

Where the parents' relationship involves family violence or one parent cannot communicate safely, shared decision-making may not be appropriate, and courts in both countries take that seriously. If that is your situation, read our guide to separating safely before you negotiate anything.

Common parenting schedules

There is no standard schedule in either country. These are patterns families often use as a starting point, written here for an equal or near-equal split and for a primary-home arrangement:

• Week on, week off. Children alternate full weeks. Few handovers, which suits older children and parents who live far enough apart that midweek travel is hard. A week can feel long for young children.
• 2-2-5-5. Each parent has the same two weekdays every week, and the weekends alternate. Children always know where they are on a given weekday, which helps with activities.
• 2-2-3. Two days with one parent, two with the other, three with the first, then it flips. Short gaps suit younger children but mean frequent handovers.
• Alternate weekends plus a midweek visit or overnight. A common primary-home arrangement where the other parent has every second weekend and one evening or overnight during the week.

Whatever the regular schedule, write a separate holiday schedule that overrides it: school breaks, major religious or cultural holidays, birthdays, Mother's Day and Father's Day, and how summer is split. Most conflict happens around the calendar exceptions, not the routine.

Very young children often do better with shorter gaps between seeing each parent, and teenagers usually want a say that reflects their school, jobs and friendships. Our guide to teenagers and parenting plans covers how much weight older children's views carry.

The schedule also affects child support. In Canada, if each parent has the child at least 40% of the time, the Federal Child Support Guidelines use a different calculation. Many US states also adjust support for shared time, using their own thresholds. See how the 40% rule works before you count overnights.

What courts look at

If parents cannot agree and a judge decides, both countries apply the same principle: the best interests of the child, and nothing else. A parent's wishes, fairness between the adults, and who was "to blame" for the separation are not the test.

In Canada, the Divorce Act tells courts to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. It then lists factors, including:

• the child's needs, given their age and stage of development;
• the strength of the child's relationships with each parent, siblings, grandparents and other important people;
• each parent's willingness to support the child's relationship with the other parent;
• the history of care for the child;
• the child's views and preferences, given their age and maturity;
• the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage;
• each parent's plan for the child's care and ability to meet the child's needs;
• the parents' ability to communicate and cooperate on matters affecting the child;
• any family violence and its impact.

The Act also says a child should have as much time with each parent as is consistent with the child's best interests. That is not a presumption of 50/50; it is a direction to give each parent as much time as works for that child.

In the US, every state uses a best-interests standard, but each state writes its own list of factors. Common ones include each parent's capacity to care for the child, the child's relationships with siblings and other family members, the child's wishes when old enough, stability, each parent's willingness to support the other relationship, and any history of abuse or domestic violence. Your state's statute is the list that counts, so check your state's court self-help pages or your state hub.

One factor deserves special attention because parents underestimate it: supporting the other relationship. Courts in both countries notice a parent who blocks calls, criticises the other parent in front of the children, or treats the schedule as optional. Being the parent who follows the plan and keeps the children out of the conflict is not just good parenting; it is also the strongest position you can be in.

What to do this week

1. Write down the current routine. Who does school drop-off, appointments, bedtimes and activities right now. The history of care matters, and it helps you build a realistic plan.
2. Separate the two questions. Write one line on decision-making and one on time. You may agree on more than you think when they are not bundled together.
3. Sketch two schedules on a calendar. Try them against your actual work hours, school locations and the children's activities before proposing either.
4. Keep the children out of it. Do not ask them to choose or carry messages. If you need to tell them about changes, our guide to talking to your kids about separation can help.
5. Choose a way to agree that is not court. Mediation is often faster and cheaper, and much easier on children. See what separation mediation involves.
6. Get your plan in writing. A detailed parenting plan, reviewed by a family lawyer in your province or state, prevents most of the arguments that come later.

Common questions

Is "custody" still used in Canada?

Not in the federal Divorce Act since March 1, 2021, which uses decision-making responsibility, parenting time and contact instead. Some provincial laws use their own terms, such as guardianship in British Columbia and Alberta, and older orders that say custody and access remain valid.

Does joint custody mean the children spend equal time in each home?

No. Joint legal custody, or shared decision-making responsibility, is about who makes major decisions. Where the children live is a separate question. Parents can share decisions while the children live mostly with one parent.

At what age can a child choose which parent to live with?

In both Canada and the US there is usually no fixed age at which a child decides. Courts consider a child's views and preferences, giving more weight as the child gets older and more mature, but the decision is still based on the child's best interests. How much weight a child's preference carries varies by state, so check your state's rules.

Is 50/50 parenting time the starting point?

Not automatically. Canada's Divorce Act says a child should have as much time with each parent as is consistent with the child's best interests, which is not a presumption of equal time. US states vary in whether they start from any presumption about shared time, so check your state's law. Many families do choose equal time when it works for the children.

Can we change our parenting arrangement later?

Yes. Parents can change an agreement together at any time, ideally in writing. If you cannot agree and there is a court order, a court can vary it when there has been a material or substantial change in circumstances, and the new order must still be in the child's best interests.

Official sources

• Divorce Act, section 16: best interests of the child (Justice Laws Website)
• The Divorce Act changes explained (Department of Justice Canada)
• What does it mean to be a guardian (Government of British Columbia)
• Determining the best interests of the child (Child Welfare Information Gateway, US)
• Child custody and visitation FAQ (Superior Court of California, County of San Diego)

This guide is legal information, not legal advice, and it is written for a general audience across Canada and the United States. Family law is provincial and state-based and changes over time. Before you rely on anything here for your own situation, confirm it with a qualified family lawyer in your province or state. FairWell can connect you with one through the professional directory.