What is the legal presumption in favour of the custodial parent in a custody matter?

As directed in Gordon v. Goertz, there is no legal presumption in favour of the custodial (legal or de facto) parent, although that parent’s views are entitled to great respect. The focus is on the best interests of the child, not the interests or rights of the parents. More particularly, the judge hearing the application must consider the following factors: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; ( c ) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools and the community he or she has come to know.

Ultimately, as set out in paragraph 50 of Gordon v. Goertz, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?