Custody and Access
When two people have a child, they both share equal right and responsibility to raise the child. This involves decisions regarding the care and upbringing of the child. When parents do not cohabitate they must arrange how they will share their parenting responsibilities.
Custody of children is usually settled by an agreement reached by the parents and their lawyers, without going to court. Parents can write out their arrangements in a parenting plan. This plan includes details such as when each parent spends time with the children and who makes major decisions regarding the child. A parenting plan can be an informal arrangement between the two parents, or it can be part of a separation agreement.
When parents cannot agree on who should have custody of the children, the matter can be brought to court to have a judge decide. The judge may ask for an assessment by a social worker, psychologist or psychiatrist. The assessor will speak to each party, the children, and sometimes those close to the family. After which, the assessor will write a report for the court, recommending where the children should live and when they should see the parent without full custody.
Custody vs. Access
Custody and Access are not defined in either the Children’s Law Reform Act or the Divorce Act. The law clearly states that both parents are equally entitled to the custody of the child. There is a significant difference between custody and access. The custodial parent has the sole right to make all decisions regarding the child, while the access parent is entitled to information concerning the child and bears no right to take part in the decision making process. Consequently, the custodial dispute involves not only where the child will reside, but who will make the decisions concerning the child.
The Child’s Best Interest
The test in determining what the custody arrangements for the child is “what is in the best interest of the child”. This means that the judge looks at all the factors that affect a child’s life such as his relationship with his parents, where he lives, where he attends school or daycare, what extracurricular activities and/or sports he is involved in and or special health care needs. In determining the issue of custody the court will weigh such factors as the ability and willingness of each parent to provide the child with guidance and education, the necessities of life and any special needs of the child, and the views and preferences of the child where such views and preferences can be reasonably ascertained. After considering all the relevant factors, the judge makes a decision that he believes will be of the greatest benefit to the child. The object of the proceeding is to place the child, rather than the persons applying for custody, at the heart of the decision.
There are many different forms of custody available such as joint custody and shared custody. Joint custody requires communication and cooperation. Traditionally both parents had to agree to joint custody for it to be granted. Nowadays, judges have shown a willingness to grant joint custody even when one parent is opposed. The court may determine that it is in the child’s best interest for parents to have joint custody to protect the parent-child relationship. Even though court imposed joint custody is gaining acceptance, the courts are still reluctant. As a general rule, the courts will not grant joint custody unless the possibility of cooperation is in the best interest of the child is evident.
