Marie+Christine+Kirouack,+“La+jurisprudence+relative+à+la+garde+où+en+sommes–nous+rendus?

- Both s.16(10) of the //Divorce Act// and the CCQ offer no presumption when it comes to custody. Joint custody (when both parents have equal custody over a child) is not the default. - s.16(10) says that a child must have the maximum contact possible with each parent, in accordance with his best interests. - Each situation must be considered in its factual specificity, with no a priori custody arrangement favoured. - Recent expert research shows that it is important for a child to have maximum contact with both of her parents. This has led to a tendency in decisions to rule in favour of shared custody.

- Shared custody has become the decision to reach //a contrario:// that is, if there are no problems with it (ie: geographical, psychological, health problems)
 * - Jurisprudence seems to be sliding towards the idea of shared custody as universal solution: shared custody must be considered when there are two parents with equal parental capacity.**

- This jurisprudential trend to consider shared custody //a contrario// forgets that the primary factor to consider is the best interests of a child. - It is possible to give sole custody of a child to a third party even absent fault from the child's parents. - It follows that, **even in the presence of two competent parents, shared custody shouldn't be the solution without proof that this is in the best interests of the child.** - The debate should move away from the rights and competent-ness of the parents, towards the rights of the child. Parents argue in court that they are equal, and that they should share equal time with the child. But "l'enfant n'est pas une copropriete indivise." - Even with equally competent parents, shared custody can be the worst imaginable scenario for a given child.