How can I obtain custody and/or access to my child?

What is the difference between custody and access?

Custody describes the legal authority to make decisions about the children, including health, education, welfare and religion. This relates to the custodial parent. Access relates to parents who have the right to spend time with the children, and receive information about the children. This relates to the non-custodial parent.

There is no presumption in favour of one parent over another i.e. a mother does not automatically receive custody of her child for example, just by virtue of being a mother.

How are decisions about custody and access determined?

Should spouses be unable to agree on an amicable custody and access arrangement, the courts will decide in view of what is in the best interest of the children. A non-exhaustive list of factors courts consider are:

1. Love, affection and emotional ties between the children and various others;
2. Views and preferences of the children;
3. Length of time children have lived in a stable home environment;
4. (d) Respective merits of the parents as providers of guidance and education, the necessities of life, and any considerations related to the special needs of the children;
5. Any plans proposed for the care and upbringing of the children (often referred to as a parenting plan);
6. Permanence and stability of the family unit proposed for the children to live;
7. Ability of persons to act as a parent;
8. The relationship by blood between the children and a parent.

Conversely, courts do not consider the parents’ marital conduct unless it relates to their ability to parent. In this determination, courts can consider whether the parent has committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any children.

What are the different types of custody and access arrangements?

Joint legal custody is where both parents share legal authority to make decisions about the children.

Joint physical custody is where parents share equally in care and control of the children including the amount of time spent with them.

 

NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.