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Difference between revisions of "Custody and Access"
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{{JP Boyd on Family Law TOC|expanded = children}} | {{JP Boyd on Family Law TOC|expanded = children}} | ||
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. | 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. | ||
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Access generally refers to the schedule of the spouse with the least amount of time with the child. There are no fixed rules about what access should look like. The facts that the court usually thinks about include: | Access generally refers to the schedule of the spouse with the least amount of time with the child. There are no fixed rules about what access should look like. The facts that the court usually thinks about include: | ||
*the distance between the spouses' homes, | |||
*the quality of the child's relationship with both spouses, | |||
*the history of the child's care before the spouses separated, | |||
*the child's age and stage of development, | |||
*any arrangements that have already been made for siblings, and | |||
*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. | 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. | ||
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===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'' 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 and access: | These are the important sections of the ''[[Divorce Act]]'' which talk about custody and access: | ||
*s. 2: definitions | *s. 2: definitions | ||
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*s. 17: variation proceedings | *s. 17: variation proceedings | ||
===Who | ===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. | 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. | ||
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====Spouses==== | ====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. | 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 | ====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. | 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. | ||
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More information about the interests grandparents and other non-parents may have in a child is provided in the first page of this chapter. | 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 | ===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> | <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> | ||
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The courts have expanded these factors into the following general principles: | The courts have expanded these factors into 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. | |||
*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. | |||
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 | ===Factors in access awards=== | ||
Section 16(10) of the ''Divorce Act'' says this about making orders for custody and access: | Section 16(10) of the ''Divorce Act'' says this about making orders for custody and access: | ||
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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. | 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 | A chart of different parenting schedules that accommodate some of these concerns is provided in the page on [[Parenting after Separation#Parenting schedule |]]. | ||
==Types of Custody Order== | ==Types of Custody Order== | ||
