Difference between revisions of "Custody and Access"

Arrangements for a child's care can also be made under the provincial [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html ''Family Law Act''], which applies to both married and un-married spouses. Look for the section on Children in Family Law Matters for a summary of how the ''Family Law Act'' and the ''Divorce Act'' are applied by the courts in different situations.

The federal ''[[Divorce Act]]'' talks about the care of children in terms of custody and access. ''Custody'' is the right to have the child with you and the right to make parenting decisions about the child, such as deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. ''Access'' is the schedule of the child's time between spouses.

Custody can be held by one or both spouses. An arrangement where both spouses share custody is called ''joint custody''. Having joint custody doesn't mean the child's time is equally split between the spouses' homes, but it does mean that both spouses will participate in making parenting decisions. An arrangement where only one spouse has custody is called ''sole custody''.

A spouse's access to a child is entirely different and separate from their 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 cover the <span class="noglossary">costs</span> associated with raising the child and to help ensure that the child has as positive and as enriching a childhood as possible. Access, on the other hand, is the <span class="noglossary">privilege</span> of a spouse to visit and spend time with their child, so that the child can have the benefit of a strong, loving and meaningful relationship with both spouses.

The ''[[Divorce Act]]'' describes children as ''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 their parents. The ''Divorce Act'' is only available to parents who are or used to be married to each other. 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.

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.'' [[https://wiki.clicklaw.bc.ca/index.php?title=Children_in_Family_Law_Matters|//wiki.clicklaw.bc.ca/index.php?title=Children_in_Family_Law_Matters]]

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, they must apply to the court under s. 16(3) for permission to apply for a custody or access order. The court <span class="noglossary">will</span> grant custody and access to people other than parents and stepparents in the right circumstances.

*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.

*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 if the wishes of the parents posed a threat to the child's health and safety.

More information about the interests grandparents and other non-parents may have in a child is provided in the [[Parenting After Separation]] and [[Guardianship, Parenting Arrangements and Contact]] sections of this chapter.

There are 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 that have developed through the courts. As far as the legislation is concerned, s. 16(8) of the ''[[Divorce Act]]'' provides that:

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. 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.  

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.

*'''Health of a spouse:''' If a parent has health problems that affect their ability to care for the child or their 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 10 to 12 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.  

There really is no standard pattern of access. All of these factors usually get taken into <span class="noglossary">account</span> 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.

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 they are 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.  

A parent with sole custody is the parent with whom the child primarily lives. That parent is responsible for the child on a day-to-day basis.

You can download a version of the adapted Joyce Model in PDF format in the resources section at the end of this section.

You can download a version of the adapted Horn model in PDF format in the resources section at the end of this section.

A spouse's access to their 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 they may have access to the child, the parent's access to the child may reasonably be denied.

*there are serious concerns about the parent's ability to properly care for the child (this may include the parent having a mental or physical illness).