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Difference between revisions of "Custody and Access"
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===Who can apply for custody and access=== | ===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. Persons other than parents also have the option to apply for "guardianship" or "contact: with a child under the provincial ''Family Law Act.'' | ||
====Spouses==== | ====Spouses==== | ||
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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. | ||
While both the Divorce Act and the ''Family Law Act'' speak of a child's "best interests", section 16(10) of the Divorce Act, the "Maximum Contact Principle" flies in the face of the ''Family Law Act's'' presumption in s. 40(4) that in making parenting arrangements, no particular arrangement is presumed to be in the best interests of a child. | |||
===Factors in access awards=== | ===Factors in access awards=== | ||
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*'''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. | *'''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. | *'''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 | *'''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 pedophilia, 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 that affect his or her ability to care for the child or his or her relationship with the child, a court may limit access. | *'''Health of a spouse:''' If a parent has health problems that 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 <span class="noglossary">decision</span> about 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 <span class="noglossary">decision</span> about access. | ||