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Difference between revisions of "Custody and Access"
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A chart of different parenting schedules that accommodate some of these concerns is provided in the page on [[Parenting after Separation]]. | A chart of different parenting schedules that accommodate some of these concerns is provided in the page on [[Parenting after Separation]]. | ||
==Types of | ==Types of custody order== | ||
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. | 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. | ||
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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. | 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 | ===Sole custody=== | ||
A parent with sole custody has the child's primary residence and is responsible for the child on a day-to-day basis. | A parent with sole custody has the child's primary residence and is responsible for the child on a day-to-day basis. | ||
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For other couples, sole custody is necessary to protect the children from the conflict between their parents. Where emotions run too high, and the parties find themselves simply incapable of communicating with each other without fighting and exchanging insults, sole custody may be necessary to shield children from their parents' conflict and give them as much stability as possible. | For other couples, sole custody is necessary to protect the children from the conflict between their parents. Where emotions run too high, and the parties find themselves simply incapable of communicating with each other without fighting and exchanging insults, sole custody may be necessary to shield children from their parents' conflict and give them as much stability as possible. | ||
===Joint | ===Joint custody=== | ||
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 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: | 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, ''[http://canlii.ca/t/1f031 Robinson v. Filyk'', 1996 CanLII 3310 (BC CA) 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> | <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> | ||
However, our Supreme Court of British Columbia commented on ''Robinson'' in a 2010 case called ''B. | However, our Supreme Court of British Columbia commented on ''Robinson'' in a 2010 case called ''[http://canlii.ca/t/2f34j B.T. v. B.L.]'', 2010 BCSC 1813 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. Joint custody is not about an equal sharing of the children's time. | 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 | ===Shared custody=== | ||
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 | 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 parent, 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. | |||
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 | ===Split custody=== | ||
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. | 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. | ||
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. | 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. | ||
==Types of | ==Types of access order== | ||
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. | 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 | ===Interim orders=== | ||
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. | 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. | ||
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. | 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. | ||
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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. | 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 | ===Specified and unspecified access=== | ||
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." | 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." | ||
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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. | 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 | A chart showing a number of different parenting schedules is available in the page on [[Parenting after Separation]]. | ||
===Conditional | ===Conditional access== | ||
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. | 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. | ||
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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 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). | |||
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 | 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 an actual risk to the child. | ||
===Supervised | ===Supervised access=== | ||
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. | 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. | ||
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The courts are generally reluctant to require supervision as a condition of a spouse seeing a child, but they will do so where: | 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. | |||
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. | 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. | ||
<!---HIDDEN | |||
==Further reading in this chapter== | |||
= | * <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | ||
END HIDDEN---> | |||
==Page resources and links== | |||
===Legislation=== | |||
* [[Divorce Act]] | |||
* [http://clicklaw.bc.ca/resource/1246 Canadian Bar Association BC Branch: Custody and access, guardianship, parenting arrangements and contact] | |||
* [http://clicklaw.bc.ca/resource/1608 Legal Services Society's Family Law Website: Access] | |||
* [http://clicklaw.bc.ca/resource/1891 Legal Services Society's Family Law Website: Custody] | |||
* [http://clicklaw.bc.ca/question/commonquestion/1007 Clicklaw Common Question: We can’t agree about who the children should live with] | |||
===Links=== | ===Links=== | ||