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Difference between revisions of "Custody and Access"

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#any limitations on a spouses' parenting capacity.
#any limitations on a spouses' parenting capacity.


Other people, usually relatives of the child like a grandparent, can have custody or access to a child. To apply for an order for custody or access, people who aren't spouses must first get the court's permission, and then make their application. Applictions like these aren't very common.
Other people, usually relatives of the child like a grandparent, can have custody or access to a child. To apply for an order for custody or access, people who aren't spouses must first get the court's permission, and then make their application. Applications like these aren't very common.


==The ''Divorce Act''==
===The ''Divorce Act''===


The Divorce Act calls children "children of the marriage," and s. 2(1) of the act defines a child of the marriage as the child of one or both spouses, providing that the child is under the age of majority at the time, or older but unable to withdraw from the care of his or her parents.
The ''Divorce Act'' calls children ''children of the marriage'', and s. 2(1) of the act defines a child of the marriage as the child of one or both spouses, providing that the child is under the age of majority at the time, or older but unable to withdraw from the care of his or her parents. The ''Divorce Act'' is only available to parents who are or used to be married to each other, and the person making the application under the act must have been "habitually resident" in the province in which the application is made for at least one year.
The Family Relations Act, at s. 1(1), defines a "child" as a person under the age of nineteen, and s. 87 says that adult children can also be "children" for the purposes of the part of the act which deals with child support.
Which act applies?


The Divorce Act is only available to parents who are or used to be married to each other, and the person making the application must have been "habitually resident" in the province in which the appliction is made for at least one year.
These are the important sections of the ''Divorce Act'' which talk about custody:
The Family Relations Act is available to anyone, providing that the child is "habitually resident" in British Columbia at the time the application is made.
Does custody include guardianship?


The Divorce Act only deals with custody and access. Under this act, guardianship is a part of having custody, so a person with a Divorce Act order for the custody of a child automatically also has guardianship of the child.
*s. 2: definitions
The Family Relations Act deals with both custody and guardianship, and orders made pursuant to this act usually provide for custody and guardianship separately. Section 27(4) of the Family Relations Act says that where an order for custody under the Divorce Act has been made, the custodial parent is also the child's guardian.
*s. 4: the court's jurisdiction to make custody orders
In general, an order for custody under either act is considered to include an order for guardianship unless the order separately provides for guardianship.
*s. 5: the court's jurisdiction to change orders
B. Key Statutory Provisions
*s. 16: custody orders
These are the important sections of the Divorce Act which talk about custody.
*s. 17: variation proceedings


s. 2: definitions
===Factors in Custody Awards===
s. 4: the court's jurisdiction to make custody orders
s. 5: the court's jurisdiction to change orders
s. 16: custody orders
s. 17: variation proceedings


==Factors in Custody Awards==
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:


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:
<blockquote><tt>In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.</tt></blockquote>


In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
The courts have expanded these factors into the following general principles:


These sections of the legislation set out the criteria which a court must consider in making an order for custody. Some additional considerations have developed through the common law which the court may consider, including the following general principles:
#the parent most likely to be granted sole custody is the person who was the children's primary caregiver during the relationship, assuming that it's necessary to make an order for sole custody for some reason;
#each parent's character, fitness and ability to parent may be considered in determining custody, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant;
#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;
#siblings will usually be kept together, although they can be separated when it would be in their best interests to live apart;
#where the children are in a stable and satisfactory setting, the court will be reluctant to alter the status quo, unless the long-term interests of the children outweigh the benefits of disturbing their present stability; and,
#the court will generally take into account the preferences of children who are ten or eleven years old or older, but the court will not be bound to follow the children's wishes.


the parent most likely to be granted sole custody is the person who was the children's primary caregiver during the relationship, assuming that it's necessary to make an order for sole custody for some reason;
There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than on gender. Either way, the critical factor in a custody award is the best interests of the child, and the parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain.
each parent's character, personality and moral fitness may be considered in determining custody, depending on the circumstances of the case, as long as issues like this are genuinely important and relevant;
the court may consider each parent's mental and physical capacity in determining custody, depending on the circumstances of the case;
siblings will usually be kept together, although they can be separated in certain circumstances;
where the children are in a stable and satisfactory setting, the court will be reluctant to alter the status quo, unless the long-term interests of the children outweigh the benefits of the present stability; and,
the court will generally take into account the preferences of children who are ten years old or older, but the court will not be bound to follow the children's wishes.
There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than gender. Either way, the critical factor in a custody award is the best interests of the child, and the parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain.


==Types of Custody Order==
==Types of Custody Order==


Custody orders fall into one of two categories: they are either interim orders, made after an action 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.
Custody orders fall into one of two categories, 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===
===Interim Orders===
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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. The result at trial may be the same or different than the situation in the interim.
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. The result at trial may be the same or different than the situation in the interim.


An application for interim custody is not meant to be a final determination of the issue, and, while the same considerations are applied in making an interim order as they are in a final order, a greater emphasis is placed on the child's immediate and short-term best interests. As a result, the courts will often preserve the existing situation, the status quo, and leave the child with whichever parent he or she is living with, rather than disturb the child and require a change of homes. In other words, if the father left the family home when the parties separated, leaving the children with their mother, the court will likely allow that situation to stand until the final decision is made. It can be difficult to change the children's living circumstances once a stable arrangment 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.
An application for interim custody is not meant to be a final determination of the issue, and, while the same considerations are applied in making an interim order as they are in a final order, a greater emphasis is placed on the child's immediate and short-term best interests. As a result, the courts will often preserve the existing situation, the status quo, and leave the child with whichever parent he or she is living with, rather than disturb the child and require a change of homes. In other words, if the father left the family home when the parties separated, leaving the children with their mother, the court will likely allow that situation to stand until the final decision is made. 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 be changed. Generally, a parent will apply to vary an interim order where there has been an unexpected change in circumstances which has adversely 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.
Interim orders can be changed. Generally, a parent will apply to vary an interim order where there has been an unexpected change in circumstances which has adversely 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.
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