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Difference between revisions of "Custody and Access"

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


Where a couple have children younger than the age of majority, 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''.
{{OKSUBSTANTIVE}}
 
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.
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.
'''JP NOT done. No gloss tags to be added, plus internal and external links.'''


==Introduction==
==Introduction==
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#any arrangements that have already been made for siblings; and
#any arrangements that have already been made for siblings; and
#any limitations on a spouses' parenting capacity.
#any limitations on a spouses' parenting capacity.
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.


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.
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.
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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 ''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.


These are the important sections of the ''Divorce Act'' which talk about custody:
These are the important sections of the ''Divorce Act'' which talk about custody and access:


*s. 2: definitions
*s. 2: definitions
*s. 4: the court's jurisdiction to make custody orders
*s. 4: the court's jurisdiction to make custody and access orders
*s. 5: the court's jurisdiction to change orders
*s. 5: the court's jurisdiction to change orders
*s. 16: custody orders
*s. 16: custody and access orders
*s. 17: variation proceedings
*s. 17: variation proceedings
===Who Can Apply for Custody and Access===
In general, anyone who has a connection to a child may apply for custody of the child. Normally, the people who apply for custody are the biological or adoptive parents of a child, but grandparents and other adults involved with the child may also apply for custody if they wish.
====Spouses====
According to s. 16(1) and (4) of the ''Divorce Act'' any person or persons can be granted custody of or access to a child. Where that person is not a spouse, he or she must apply to the court under s. 16(3) for permission to apply for a custody or access order. The court will grant custody and access to people other than parents and stepparents in the right circumstances.
====People Other than Parents and Stepparents====
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.
*The natural or adoptive parents of a child have a presumptive right to the custody of that child, except where they have abandoned the child or demonstrated a serious lack of fitness to have custody, as might be the case in situations of abuse or neglect.
*Custody should only be given to third parties when the natural or adoptive parents are unwilling, unable or unfit to care for the child.
*The wishes of the natural or adoptive parents should be heeded unless there is a serious reason why they shouldn't be, as might be in the case of a threat to the child's health and safety.
The common theme here is that there must be a real and substantial concern about the fitness of the natural or adoptive parents' ability to care for a child before that child is taken away from them and given to a third party.
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.


===Factors in Custody Awards===
===Factors in Custody Awards===
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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.
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.
===Factors in Access Awards===
Section 16(10) of the ''Divorce Act'' says this about making orders for custody and access:
<blockquote><tt>In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.</tt></blockquote>
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.
The following are some of the factors the courts will consider in making an order for access.
*'''Age of the child:''' The younger a child is, the more likely it is that an access award will be for short but frequent time periods only. The older a child is, the more likely it is that access will be granted for overnight visits and for more than one day in a row. Younger children often require more constant physical attention and more extended periods of time with the custodial parent.
*'''Distance between homes:''' If one parent lives far away from the other parent, the court may grant access on holidays or long weekends alone. Younger children, in general, do not have the tolerance for long road trips or extended air or ferry travel. Even school-age children may find extended travel times uncomfortable and disrupting.
*'''Work schedules:''' Access schedules must accommodate parents' work schedules. If a parent is off work and available to care for the children when the other parent is at work, the parent who isn't working ought to have the children. Parents' availability also dictates the timing of pick-ups and drop-offs and responsibility for the children when they're at school.
*'''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.
*'''Preferences of the child:''' The court will consider the wishes of the child once they reach about ten to twelve years of age, although there really is no magic age and the court will not be bound by the child's wishes. Younger children are generally assumed to be too emotionally and intellectually immature to make a reasoned decision about access.
There really is no "standard" pattern of access. All of these factors usually get taken into account when an access schedule is designed, and in general an access schedule can be as creative as the flexibility of the spouses and common sense allow.
A chart of different parenting schedules that accommodate some of these concerns is provided in the ________ page.


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


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.
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===
===Interim Orders===


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. 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.


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.
An interim custody order is not 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 mostly 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.  


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.
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.


===Sole Custody===
===Sole Custody===
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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.
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.


It used to be the case that where the parties had trouble communicating with one another, the courts would automatically make an order for sole custody. This predispostion has pretty much disappeared, and the courts will usually allow even highly conflicted parents to have joint custody, as long as they share a fairly common idea of how the children should be brought up and are mature enough to keep their disputes between themselves. In a 1996 case from our Court of Appeal, Robinson v. Filyk, the court said that there should be no presumptions in favour of or opposed to joint custody, nor any presumption that joint custody should be allowed only where the parents are able to get along and communicate with each other:
It used to be the case that where the parties had trouble communicating with one another, the courts would automatically make an order for sole custody. This view has pretty much disappeared, and the courts will usually allow even highly conflicted parents to have joint custody, as long as they share a fairly common idea of how the children should be brought up and are mature enough to keep their disputes between themselves. In a 1996 case from our Court of Appeal, ''Robinson v. Filyk'', the court said that there should be no presumptions in favour of or opposed to joint custody, nor any presumption that joint custody should be allowed only where the parents are able to get along and communicate with each other:
 
<blockquote>"It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled."</blockquote>


"It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled."
However, our Supreme Court of British Columbia commented on ''Robinson'' in a 2010 case called ''B.L. v. B.T.'', saying that the courts have since "moved away from presuming that if parties have difficulty communicating, joint custody is not appropriate," suggesting that there there may in fact be an unspoken, unlegislated presumption in favour of joint custody.
The Supreme Court of British Columbia commented on Robinson in a 2010 case, B.L. v. B.T., saying that the courts have since "moved away from presuming that if parties have difficulty communicating, joint custody is not appropriate," suggesting that there there may in fact be an unspoken, unlegislated presumption in favour of joint custody.


Whether parents have joint or sole custody depends more on their relationship and approaches to parenting than it does on how much time each parent has with the children. A parent can see the children only on every other weekend, or live in another province altogether, and still have joint custody with the other parent.
Whether parents have joint or sole custody depends more on their relationship and approaches to parenting than it does on how much time each parent has with the children. A parent can see the children only on every other weekend, or live in another province altogether, and still have joint custody with the other parent. Joint custody is not about an equal sharing of the children's time.


===Shared Custody===
===Shared Custody===


Shared custody is a kind of joint custody 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.
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.
 
In many ways, this is an ideal form of custody since the children spend an equal amount of time with each parent, and have an equal opportunity to bond with each parent. Shared custody usually requires that:


In many ways, this is an ideal form of custody since the children spend an equal amount of time with each paren, and have an equal opportunity to bond with each parent. Shared custody usually requires that:
#the parents live fairly close to one another;
#the parents have adequate communication skills with one another;
#both parents are able to put the children's needs ahead of their own;
#the children are old enough to be able to tolerate the disruption of living in two different homes; and,
#the arrangement is in the best interests of the children.


the parents live fairly close to one another;
the parents have adequate communication skills with one another;
both parents are able to put the children's needs ahead of their own;
the children are old enough to be able to tolerate the disruption of living in two different homes; and,
the arrangement is in the best interests of the children.
Of course, there are downsides to this sort of order. The strain of communicating so frequently with the other spouse can be a bit of a burden; it can be costly to maintain a full set of clothing, shoes, toiletries and supplies at each house; and, no matter what, the children are still moving from one house to another each week.
Of course, there are downsides to this sort of order. The strain of communicating so frequently with the other spouse can be a bit of a burden; it can be costly to maintain a full set of clothing, shoes, toiletries and supplies at each house; and, no matter what, the children are still moving from one house to another each week.


===Split Custody===
===Split Custody===


In this type of custody, one or more of the children live with different parents. Each parent may have sole custody of those children who are in his or her care or the parents may have joint custody of all of the children, regardless of where the children live. This is a fairly drastic form of order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes.
Split custody is a term used by the Child Support Guidelines to describe a kind of parenting situation in which one or more of the children live with mostly with each parent. The parents may have sole custody of the children in their care or they may have joint custody of all of the children, regardless of where the children live.  
 
These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a s. 15 report confirming that the children ought to be split apart is essential.
 
==Who Can Apply for Custody==
 
In general, anyone who has a connection to a child may apply for custody of the child. Normally, the people who apply for custody are the biological parents or legal guardians of a child, but grandparents or other adults involved with the child may also apply for custody if they wish.
 
===Spouses===
According to s. 16(1) and (4) of the Divorce Act any person or persons can be granted custody of a child. Where that person is not a spouse or a former spouse, however, her or she must apply to the court under s. 16(3) for permission to apply for a custody order. The court may grant custody to non-parents.
 
 
===People Other than Parents===
While both acts make it clear that anyone can apply for the custody of a child, the court will presume that the biological and step-parents of a child are entitled to raise their own 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 the interests of the child's parents or those of third parties.
 
The general common law rules dealing with competing custody claims between a non-parent and a parent are these.
 
The natural parents of a child have a prima facie right to the custody of that child, except where they have abandoned the child or demonstrated a serious lack of fitness to have custody, such as in the cases of abuse or neglect.
Custody should only be given to third parties when the natural parents are unwilling, unable or unfit to care for the child.
The wishes of the birth parents should be heeded unless there is a serious reason why they shouldn't be, as in the case of a threat to the child's health and safety.
The common theme here is that there must be a real and substantial concern about the fitness of the natural parents' ability to care for a child before that child is taken away and given to a third party.
 
More information about the interests grandparents and other non-parents may have in a child is set out in the first chapter of this section.
 
==Access==
 
Access, sometimes called "visitation," "contact" or "parenting time," is generally described as the time that the parent without a child's primary residence spends with the child. Simply being a parent, however, does not guarantee a right to access. As in all matters involving children, the court's primary concern is with the child's best interests, not with whatever the interests or preferences of the parents might be. An award of access to a parent must be in the best interests of his or her child. Section 16 of the Divorce Act, the section dealing with orders for custody and access says this:
 
(8) 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.
In the vast majority of cases, the parent without the children's primary residence will have some amount of contact with the children, regardless of whether the parents have sole or joint custody. The amount of access can range from contact once or twice per month to a very involved schedule in which the parents share their children's time equally or near-equally.


Access is a basic parental privilege and a parent will be entitled to share in the life of his or her child unless he or she somehow poses a risk to the safety or well-being of the child. However, since the decision about how much access each parent should have involves a consideration of the child's best interests, a parent's failure to exercise that access and remain consistently involved in a child's life may be seen as contrary to a child's best interests. In the case of B.J.M. v. K.F.B., a 2003 decision of the Supreme Court of British Columbia, the court said this:
This is a fairly unusual order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes. These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a needs of the child assessment, prepared under s. 211 of the ''Family Law Act'', confirming that the children should be split apart is essential.
 
"By refusing to exercise access to his son, the father has essentially ignored the child's best interests since 1993."
It is a basic principle of family law that it is in the best interests of children to maintain as much contact with both parents as possible and to maintain a strong bond with both parents. The essential point of an access order is to promote and nurture the child's relationship with the non-custodial parent and both parents have a duty to foster this relationship.
 
===Access Difficulties===
In some family situations, deciding access can be a serious problem. While most parents do their best to shield their children from the bitterness, anger and hard feelings that can sometimes accompany a divorce, children often absorb some of the emotional tensions in the household and can come to see the parent who left as "bad" compared to the "good" parent who stayed. As well, children can also form the impression that the "bad" parent is somehow hurting the "good" parent, although perhaps not in a way that they can understand. For these reasons among others, children sometimes come to dislike or resent the "bad" parent and not wish to see him or her.
 
In other situations, a child will demonstrate a natural separation anxiety on leaving a parent for the child's time with the other parent. Even though most children experience separation anxiety on leaving both parents, each parent only experiences only one side of the anxiety and never sees the child ease back into a warm relationship with the other parent. This sometimes leads parents to believe that the child doesn't want to see the other parent.
 
In difficult circumstances like these, complying with an order for access can be very difficult: the child seems not to want to go and visit the non-custodial parent, and the custodial parent feels badly about making them do something they don't want to do. It is critical to remember that:
 
the order for access is binding on the custodial parent, not the child;
unless the child actually visits the other parent, the child might never get over his or her dislike or resentment;
the reluctance a child displays about going to visit the other parent rarely reflects an actual dislike of the other parent; and,
the child's relationship with each parent is valuable and deserves to be protected, and must be nurtured by both parents.
As a general rule of thumb, the custodial parent has an obligation to do all he or she can to ensure that the child visits the non-custodial parent, no matter how much of a fuss the child puts up. Remember that as the child grows up, the court will pay more and more attention to the child's wishes even though the court may not heed them. It is always easier to accept that a child's reluctance to visit a parent is genuine when the information comes from the child him- or herself.
 
===Access and People other than Parents===
 
Children may also have a right to remain 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 of grandparents and other non-parents is provided in the first chapter of this section.
 
===Access and Child Support===
 
A parent's access to a child is entirely different and separate from a parent's 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 parent to the other to help defray the costs associated with raising the child and help ensure that the child has as good and as enriching a childhood as possible. Access, on the other hand, is the privilege of a parent 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 parents.
 
To many parents this will seem like a fairly basic point. However, some people, particularly when a custodial parent withholds access, are tempted to cut off their child support payments to punish the custodial parent for not allowing access. Other people demand child support payment before they will allow a non-custodial parent to see his or her child. Either way, this behaviour is wrong and the person who suffers the most is the child, and the court will not approve of any attempt to barter access for child support or vice versa.
 
 
 
E. Key Statutory Provisions
The important sections of the federal Divorce Act dealing with access are these.
 
s. 2: definitions
s. 4: jurisdiction to make access orders
s. 5: jurisdiction to change orders
s. 16: access orders
s. 17: variation proceedings
 
 
==Factors in Making Orders for Access==
 
Since neither the Divorce Act nor the Family Relations Act go into much detail regarding access, except to state the overriding importance of the child's best interests, the courts have had to come up with some guidelines of their own. The following are some of the factors the courts will consider in making an order for access.
 
Age of the child: The younger a child is, the more likely it is that an access award will be for short but frequent time periods only. The older a child is, the more likely it is that access will be granted for overnight visits and for more than one day in a row. Younger children often require more constant physical attention and more extended periods of time with the custodial parent.
Distance between homes: If one parent lives far away from the other parent, the court may grant access on holidays or long weekends alone. Younger children, in general, do not have the tolerance for long road trips or extended air or ferry travel. Even school-age children may find extended travel times uncomfortable and disrupting.
Work schedules: Access schedules must accommodate parents' work schedules. If a parent is off work and available to care for the children when the other parent is at work, the parent who isn't working ought to have the children. Parents' availability also dictates the timing of pick-ups and drop-offs and responsibility for the children when they're at school.
Conduct of a non-custodial parent: 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 non-custodial parent: 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 acess.
Preferences of the child: The court will consider the wishes of the child once they reach about ten to twelve years of age, although there really is no magic age and the court will not be bound by the child's wishes. Younger children are generally assumed to be too emotionally and intellectually immature to make a reasoned decision about access.
There really is no "standard" pattern of access. All of these factors usually get taken into account when an access schedule is designed, and in general an access schedule can be as creative as the flexibility of the parents and common sense allow.
 
A chart of different parenting schedules that accommodate some of these concerns is set out in the chapter Children > Parenting after Separation.


==Types of Access Order==
==Types of Access Order==


There are two main types of order in family law, 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 first segment that follows discusses some peculiarities specific to interim orders, but the rest of the segments apply equally to both types of order. This information also applies to agreements about access.
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.


===Interim Orders===
===Interim Orders===


Interim orders are intended to be a sort of rough-and-ready solution to the legal problems a couple faces, pending a final decision at 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 parent 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.
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.


While an interim order will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the parents' legal issues wind their way through the court system.
While an interim order will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the spouses' legal issues wind their way through the court system.


Note the wrongful conduct of parent will not establish a status quo that the court will respect. If a parent is seeing a child too little or if the other parent is withholding access, the court will act on an interim basis to expand the time the parent has with the child; if a parent has taken off with the child, a court may order the parent and child to return.
However, the wrongful conduct of spouse will not establish a status quo that the court will respect. If a parent is seeing a child too little or if the other parent is withholding access, the court will act on an interim basis to expand the time the parent has with the child; if a parent has taken off with the child, a court may order the parent and child to return.


===Specified and Unspecified Access===
===Specified and Unspecified Access===


A typical access order provides either that the non-custodial parent will have an unspecified amount of time with the child or a specific schedule of access to the child. Some orders provide for both specified access and "such other access as the parties may agree."
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 both parents can communicate with each other reasonably well and each is prepared accommodate the other. Where there is any tension between the parties relating to the children, such an order may not be appropriate if there is a chance that one parent will withhold the child from the other. In fact, it may be a recipe for disaster.
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.


Specified access is probably the more common kind of access. Specified access orders state at what times and dates the non-custodial parent will visit with his or her children. These orders can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Specified access orders can encompass pretty much every kind of arrangement that you can think of, or be limited and general. A typical specified access order might provide that the non-custodial parent can see the child every other weekend, from a certain time on a certain day until a certain time on another day, on a couple of weeknights between certain times, and on certain holidays in alternating years.
Specified access is probably the more common kind of access. Specified access orders state at what times and dates a spouse will have the child. These orders can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Specified access orders can encompass pretty much every kind of arrangement that you can think of, or be limited and general. A typical specified access order might provide that a spouse will see the child every other weekend, from a certain time on a certain day until a certain time on another day, on a couple of weeknights between certain times, and on certain holidays in alternating years.


In general, the more difficult the parties' relationship is following separation, the more likely it is that the order will specify the access schedule on very detailed terms. Some people just need a set of rules to live by.
In general, the more difficult the spouses' relationship is following separation, the more likely it is that the order will specify the access schedule on very detailed terms. Some people just need a set of rules to live by.


A chart showing a number of different parenting schedules is available in the Children > Parenting after Separation chapter.
A chart showing a number of different parenting schedules is available in the ____________ page.


===Conditional Access===
===Conditional Access===


A parent's access to his or her child can be made conditional on the parent doing or not doing something. If a parent fails to meet any of the conditions on which he or she may have access to the child, the parent's access to the child may reasonably be denied.
A spouse's access to his or her child can be made conditional upon the parent doing or not doing something. If a parent fails to meet any of the conditions on which he or she may have access to the child, the parent's access to the child may reasonably be denied.


In general, the court must have some fairly serious concerns about a parent's lifestyle or behaviour before an access order will be conditional. Conditional access orders have been made in cases such as the following:
In general, the court must have some fairly serious concerns about a parent's lifestyle or behaviour before an access order will be conditional. Conditional access orders have been made in cases such as the following:


a parent was a heavy smoker (the condition being not to expose the child to second-hand smoke);
#a parent was a heavy smoker (the condition being not to expose the child to second-hand smoke);
a parent used drugs or alcohol (not to use drugs or alcohol while with the child and for a period of 24 hours before access); and,
#a parent used drugs or alcohol (not to use drugs or alcohol while with the child and for a period of 24 hours before access); and,
a parent was a dangerous driver (not to drive with the child in the car).
#a parent was a dangerous driver (not to drive with the child in the car).
In theory, access can be be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent.
 
In theory, access can be be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent that poses and actual risk to the child.


===Supervised Access===
===Supervised Access===
Access may be restricted where there is a concern that the access visits may harm the child. In extreme cases, the court may require that the non-custodial parent's access be supervised by a third party. Such supervision may be by a grandparent, another relative or a stranger. There are even companies who provide such supervisory services.


The courts are generally reluctant to require supervision as a condition of the non-custodial parent, but they will do so where:
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.
 
The courts are generally reluctant to require supervision as a condition of a spouse seeing a child, but they will do so where:
 
#there has been a history of child abduction or attempts to abduct the child;
#there is a history of abuse against the child or the other parent;
#the parent has attempted to poison or alienate the child against the other parent or otherwise interfere with the child's relationship with the other parent; or,
#there are serious concerns about the parent's ability to properly care for the child, which may include mental and physical illness.


there has been a history of child abduction or attempts to abduct the child;
In general, supervised access is intended to be a short-term solution to a problem, rather than a permanent condition of access. Remember that it is up to the spouse who says someone's access should be supervised to prove why it should be supervised.
there is a history of abuse against the child or the other parent;
the parent has attempted to poison or alienate the child against the other parent or otherwise interfere with the child's relationship with the other parent; or,
there are serious concerns about the parent's ability to properly care for the child, which may include mental and physical illness.
In general, supervised access is intended to be a short-term solution to a problem, rather than a permanent condition of access. Note that it is up to the custodial parent to show why access must be supervised.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
DA


===Links===
===Links===
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