Custody and Access
Custody and access have two separate legal meanings, yet often get confused for one another. Custody relates to the decision making authority over the child. Custody is defined by the Children's Law Reform Act as 'rights and responsibilities of a parent'. This may include which school the child attends, which religious institution the child may partake in, medical decisions and extracurricular activities. Access relates to where the child resides. This is achieved through an 'access schedule' and it determined on the child's best interests.
Custody can be arranged in various ways. At one end, one parent may have absolute and total care and decision making power over the child. This is known as sole custody, and is separate from the issue of the other parent having access rights to the child. At the other end, both parents may share care and decision making equally. This is known as joint custody. Parents can have joint custody over a child, and still have the child primarily reside with one parent over the other.
What Does a Court Look at in Determining Custody?
In determining custody, the court's main consideration is the best interests of the children. The Children's Law Reform Act lists various factors in section 24(2) for the court to consider when deciding such interests:
(a) The love, affection and emotional ties between the child and,
each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
other members of the child's family who reside with the child, and
persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application
Overall, the most important factor in a custody dispute is the status quo. If the current custody arrangements for the child are not working, a judge will alter custody situation.
Custody and access disputes can be very difficult and stressful for all parties involved. It is important to seek legal guidance throughout this process. If you need assistance with custody or access arrangements, please contact our office: 416-924-5969