Difference between revisions of "Custody and Access"

When married spouses with children younger than the age of majority separate, decisions must be made about how the children will be brought up, who they will live with, and how they will be cared for. For many people, arguments about parenting issues like these are the most difficult parts of ending a relationship. Under the ''[[Divorce Act]]'', which applies just to married spouses, these issues are addressed through orders about custody and access.

This chapter talks about custody and access, and discusses the factors that govern awards of custody and access and the types orders about custody and access that can be made.

The federal ''Divorce Act'' talks about the care of children in terms of custody and access. Custody is the right to have the child with you and the right to make parenting decisions about the child, such as deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion and what sports the child plays after school. Access is the schedule of the child's time between spouses.

A spouse's access to a child is entirely different and separate from his or her obligation to pay child support. Child support is not a fee paid to exercise access, nor is it a fee charged to allow access. Child support is paid by one spouse to the other to help defray the costs associated with raising the child and help ensure that the child has as positive and as enriching a childhood as possible. Access, on the other hand, is the privilege of a sposue to visit and spend time with his or her child, so that the child can have the benefit of a strong, loving and meaningful relationship with both spouses.

While the ''Divorce Act'' is clear that anyone can apply for the custody of a child, the court will presume that the biological, adoptive and stepparents of a child are entitled to raise the children unless there is a clear reason why this should not be the case. Again, as in all matters touching on children, the court's decision will rest wholly on what is in the best interests of the child, not what is in the interests of the child's parents or those of third parties.

 

The general rules dealing with competing custody claims between a non-parent and a parent are these.

*Custody should only be given to third parties when the natural or adoptive parents are unwilling, unable or unfit to care for the child.

Children may however have an interest in remaining involved and in contact with the other people in their lives, such as grandparents, cousins, aunts, uncles, long-term caregivers and so forth. Grandparents, and other people who aren't parents, can apply for access to children on their own, with or without the co-operation of the parents.  

More information about the interests grandparents and other non-parents may have in a child is provided in the first page of this chapter.

There are really two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors which have developed through the courts. As far as the legislation is concerned, s. 16(8) of the ''[[Divorce Act]]'' provides that:

*The court may consider each parent's mental and physical capacity in determining custody, depending on the circumstances of the case and and again as long as issues like this are genuinely important and relevant.

This subsection has come to be known as the ''maximum contact'' principle, for the obvious reason. However, the idea that the nature and extent of a spouse's time with the child must be consistent with the child's best interests is just as important as the idea that the child should have as much contact with each parent as is possible. It is not in a child's best interests to have extensive visits with a parent who is abusive, trash-talks the other parent, has poor parenting skills, is addicted to drugs or alcohol or has a history of being uninvolved in the child's life.

*'''Conduct of a spouse:''' If a parent is unable to meet the child's needs or behaves inappropriately, access to the child may be restricted. In the past, access has been denied to non-custodial parents with a history of alcoholism, abuse, or paedophilia or who have abducted the child or attempted to alienate the child from the other parent.  

*'''Health of a spouse:''' If a parent has health problems which affect his or her ability to care for the child or his or her relationship with the child, a court may limit access.

A chart of different parenting schedules that accommodate some of these concerns is provided in the page on [[Parenting after Separation]].

Custody orders are either one of two types, they are either ''interim orders'', made after a court proceeding has started but before it has concluded, or they are ''final orders'' made following a settlement or a trial. In general, any kind of order that can be made on a final basis can also be made on an interim basis.

Interim orders are usually intended to provide a rough structure to the legal relationship between the parties and their children which will last until the matter is finally resolved at trial. Interim orders are not meant to be perfect orders and are often made on less than perfect evidence. The result at trial may be the same or different than the situation in the interim.

It can be difficult to change the children's living circumstances once a stable arrangement has been reached, and both parents should be very careful and consider their options carefully if things come to the point where one parent has to move out of the family home. Interim orders can, however, be changed. Generally, a parent will apply to vary an interim order where there has been a change in circumstances which has affected the best interests of the child. Where there has not been such a change in circumstances, the interim order will usually stay as it was.

An order for joint custody gives each parent custody of the children. In such cases the parents need to work together and co-operate in raising the children. The children may still spend more time — sometimes a lot more time — at one parent's home than the other, but both parents will be the children's joint custodians and their joint guardians.

When spouses have joint custody, they need to work together and co-operate in raising the children. This can sometimes be difficult, particularly when there is a lot of conflict in the spouses' relationship with one another. Before the ''Family Law Act'' came into effect, the rights and obligations involved in joint custody were usually addressed through a guardianship order under the ''Family Relations Act'', in particular through two models of joint guardianship, the Horn model and the Joyce model. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out spouses' rights and obligations in the same way. However, since joint custody involves the need to work together and co-operate in making parenting decisions, the models can still work. They just need to be changed a bit.

:#each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare,

:#each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

:#to be informed of parent/teacher nights so that the spouse may attend,

Shared custody is a term used by the [[Child Support Guidelines]] to describe a kind of joint custody situation in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared custody, the children will usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. Shared custody can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, the parents' work schedules and the schedules of the children's activities.

Orders for access are either of two types of order, interim orders and final orders. ''Interim orders'' are made before trial, and ''final orders'' are made either by a judge after trial or with the agreement of the parents without a trial.

The page on [[Interim Applications in Family Matters]] in the [[Resolving Family Law Problems in court]] chapter, discusses interim orders more fully. Interim orders are intended to be a sort of rough-and-ready solution to the legal problems spouses face after they have separated, and are really only meant to last until a final decision is made following trial or a settlement of the action. Interim orders are short-term solutions intended to deal with the immediate problems about where a child will live and the role each spouse will play in raising the child. Interim access will be decided after a decision has been made with respect to the child's primary residence.

Every order for access, whether interim or final, will say that a spouse will have either a set schedule of time with the child or something much or ambiguous that really isn't a schedule at all. Some orders will provide for both a set schedule of access and "such other access as the parties may agree."

Unspecified access is usually described as "liberal and generous access" in orders and family agreements. This sort of access is appropriate where the spouses can communicate with each other reasonably well and each is prepared to accommodate the other. Where there is any tension between the spouses relating to the children such an order may not be appropriate, particularly if there is a chance that one parent will withhold the child from the other. In fact, it may be a recipe for disaster.

A chart showing a number of different parenting schedules is available in the page on [[Parenting after Separation]].

Access may be restricted where there is a concern that the visits may result in harm to the child. In extreme cases, the court may require that a spouse's access be supervised by a third party. Such supervision may be by a grandparent, another relative or by a person who specializes in supervising access. There are even companies who provide supervised access services.

==Page resources and links==