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Custody and Access

Custody technically means the legal responsibility to make decisions for the child related to health, education and religion. Access is the right to be with the child at a given time. The basic issues that revolve around custody are: who will make the primary decisions relating to the child and who the child will live with.

Most custodial arrangements are made between the parents themselves or with the assistance of professionals. If parents are unable to agree on the child’s best interests, either on their own or with the assistance of lawyers or mediators, then the courts will do it for them.

One of the most important factors in determining which parent will be given custody is the status quo. That means that the first time a case comes before a judge, he or she will inquire as to the arrangements regarding day-to-day care of the children since separation.

In the absence of a very compelling reason and strong evidence supporting that reason, judges will not uproot a child from the care of one parent and transfer him/her to the care of another parent on an interim basis.

Residential changes involve the possible change of schools, change of neighbourhood and emotional stress to the child. Such disruptions are rarely in a child’s best interests, so in the absence of strong evidence to the contrary, a judge will generally make an interim or temporary order that reflects the status quo and that leaves the child in the care of the parent who has actual custody since separation.

Custody Plan

A custody plan is an outline of the arrangements each parent proposes for raising the children.

Theoretically, regardless of the status quo, a court will investigate and consider several factors in determining the best interests of the children. These factors include:

1. The stability of the two competing households.

2. The willingness of each parent to ensure the development of a relationship between the children and the other parent.

3. The ability (that is availability, interest and degree of responsibility) of each parent to care for the children.

4. The children’s wishes (if appropriate) and relations between the children and step-siblings, among other things.


Joint Custody

Joint custody has nothing to do with where the child resides. It does not mean that the child lives one week with one parent and the next week with another parent. Joint custody refers to the decision-making process and the degree of rights each parent has to be involved in those decisions.

In the typical joint custody situation the child resides "primarily" with one parent or the other. Primary residence basically refers to the address of the child. For example, when a child is registered in school, the school generally expects the child to have a single residence; that would be the primary residence.

One important consequence of joint custody is that it creates a presumption that the child should remain in close physical proximity to both parents. This means that it is more difficult for one parent to convince a court that if he or she decides to move out of the area, the children should move as well. This is an important consideration for each parent when they are deciding whether or not to agree to or seek joint custody.

Courts are often reluctant to order joint custody in the face of opposition from one of the parents. Courts reason that if the parents cannot agree on the concept of joint custody, it is unlikely they possess the requisite level of cooperation to make decisions together. Although there may be judges who will occasionally order joint custody, most joint custody arrangements are arrived at through the agreement of the parties.


Shared Custody

Shared custody is an arrangement where the children live with each parent for approximately equal periods of time. Usually, a shared custody arrangement only exists when there is joint custody regarding decision-making. For this reason shared custody is seldom ordered by courts in the face of opposition from one party or the other. Generally, for shared custody to work, the parties should live reasonably close to each other in order to ensure that the children will remain close to their school and their neighbourhood friends. The actual schedule can be alternate weeks or the sharing of the days during the week.

Shared custody can have a significant impact on the payment of child support.

Increasingly, such families opt for Shared Parenting arrangements or Joint Parenting Plans. Such agreements set out detailed residential schedules of the children, the specific rights, duties, and obligations of each of the parents, establish decision making processes, and provide for dispute resolution processes to be utilized, including mediation, in the event that a dispute arises with respect to the children.


Access and Visitation

Where a sole custody Order is made, a child will typically have primary residence with his or her custodial parent.

Non-custodial parents and their children, however, remain entitled to ongoing, generous contact, including (where appropriate) overnight, weekend, religious holiday, birthday and extended summer vacation access.

Parents who are entitled to access are also entitled to be kept fully informed by doctors, dentists, teachers and schools as to medical and educational issues relating to their children.

Access parents are also entitled to have input into important decisions affecting the educational, physical, religious, social, and moral development of their children.

Typically, however, where one parent has sole custody of a child, that parent is entitled to make final decisions regarding such matters, unless a Court orders otherwise.

The child's right to access is a paramount entitlement. Increasingly, Courts are imposing sanctions upon custodial parents who interfere with or otherwise impede access.

Once an access agreement has been concluded or a court has made an access order, neither parent is free to unilaterally extend, suspend or terminate such access in the absence of a Court Order. It is essential that legal representation be obtained in order to seek enforcement or variation of an access Order.

The law regards access as being an extremely important component of the normal development of a child who has had his or her family fractured. It is, therefore, only in the most extreme cases that access will be denied by a court. Those situations include severe substance abuse, a history of violence (a single incident will rarely suffice) or proven threats from the non-custodial parent to abduct the child.

When court ordered access does not take place because of the actions of one parent or the other, the party responsible can expect to be brought back to court. The child has a right to see the access parent. On the other hand, if access is persistently missed by the non-custodial parent, the court may order the access be suspended rather than expose the child to future disappointments.

If one parent is denying access, the other parent’s best option is to assemble incontrovertible evidence that the access has been denied. The most common excuses for not making the child available for access are as follows:

· The child was sick.

· The access parent did not arrive to pick the child up on time.

· The child had another special activity.

· The child did not want to go on access.

· A complaint about the lack of care or supervision on access visits.

· The access parent is rude or threatening at the access exchange.

In cases of persistent denial of access, these excuses cycle through the case over and over again. A custodial parent may begin to insist on new conditions for access by changing the time or place of pick-up. All the access parent can do is keep a careful, detailed record of each incident of denied access.

A contempt hearing can be brought if access is continually denied. A contempt of court hearing is like a criminal trial with oral testimony from witnesses and a criminal burden of proof. For that reason, access parents must have witnesses to the fact that the child was not sick, or to the fact that the access parent did arrive to pick up the child as scheduled.

On the other side, if the custodial parent wants to change access, he or she should return to court to change the access order and maintain the existing court ordered access until that time. Although the risk of severe punishment is small, it is not non-existent and there are certain judges who are quite strict about access violations.

Mobility Rights

The issue of mobility rights arises when the custodial parent wants to move with the child and the proposed move is far enough away from the child’s current residence as to make frequent access impossible or very costly.

The party proposing the move will have to satisfy the court that the access that will have to be substituted for the current access will fulfill the needs of the child with respect to the maintenance and growth of a strong relationship with the access parent.

A detailed custody plan should be devised outlining the facilities available in the proposed locale as compared to those facilities in the child’s current location. Considerations include: employment opportunities, cost of living, availability of health care and education, social services and support, the cultural environment and the economic profile of the area. While this list is not exhaustive, it should give you some ideas as to what the court will consider.


The court may also consider the results of an assessment of the child’s needs and the ability of each parent to provide for those needs in order to determine the issue of custody. An assessment is an investigation by an objective third party, usually a social worker or psychologist. An assessment must be ordered by the court.

In addition to being an objective and trained professional, an assessor will spend 20 or 30 hours interviewing the children, meeting with the parents separately and with the children, visiting the proposed households, speaking with teachers and doctors and other people involved in the children’s lives. An assessor will confer with the lawyers for both sides and review the documents in a court case to familiarize him/herself with each party’s position and each party’s custody plan.

Unless the parties consent, a court will only order an assessment if there is a "clinical issue" raised in the custody dispute. A clinical issue is the allegation that one parent is not fit to have custody because of violence or drug/alcohol abuse or for psychological reasons, or because of a particular cultural or religious issue. An allegation that the custodial parent is interfering with access would not be a clinical issue.

Assessments are expensive and generally cost between $3,000 and $7,000 with the cost divided between the parties, sometimes equally and sometimes in proportion to income.

Office of the Children’s Lawyer

An alternative to the assessment is an investigation by the office of the Children’s Lawyer. The Children’s Lawyer can carry out one of two functions (or sometimes both), in a particular case. The first and most common function is to conduct a form of assessment called an investigation.

An investigation is similar to an assessment, but with some important differences. First, the investigation will only take place if ordered by the court and the Children’s Lawyer agrees that it should be conducted. Second, a Children’s Lawyer investigation will not begin for many months after it is ordered, while a private assessment will usually begin within weeks of a court order being made.

Also, Children’s Lawyer’s investigations tend not to be as exhaustive as a private assessment because of strains on the resources of the office. The parties have no control over who will actually conduct the investigation for the Children’s Lawyer. In a private assessment the parties can agree on an experienced assessor with certain expertise or skills appropriate to the particular situation. In a Children’s Lawyer investigation, the social worker is selected by the office and may have biases or be a recent college graduate without much experience. Finally, unlike a private assessment a Children’s Lawyer investigation is free.

Assessments or investigations are critically important.

1. The client should treat the matter seriously and dress appropriately.
2. The client should review all court documents and be prepared to answer questions on any matter before the court.
3. The client should be punctual with appointments.
4. The client should not insult the other party or the other lawyer.
5. The client should focus his or her comments on the child’s best interests.
6. The client should never discuss the assessment with the child.

Contact us for more information or if you wish to obtain custody & access advice in your family law matter.

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