Child Custody & Access
When two people have a child, presumptively they have equal rights and equal responsibilities with respect to raising their child. They have an equal right to make decisions about their child’s care and upbringing. This is true whether the parents are married or not.
When parents live together, they can make decisions about their child’s care and upbringing together on a day-to-day basis. As a couple, they work out how they spend time with and share responsibility for their child.
When parents do not live together, they must arrange how they will share their parenting rights and responsibilities.
What types of decisions do parents who do not live together need to make?
Parents who do not live together must make decisions about:
- where their child will live,
- how much time each of them will spend with their child,
- how they will make decisions about their child’s welfare and upbringing, and
- what role each of them will play in caring for their child
These are decisions about what the law calls “custody” and “access”.
What is custody?
Custody is the right to make the important decisions about the care and upbringing of a child. For example, the custodial parent will have the right to determine the child’s:
- school and educational programs, and
- medical treatment.
If parents disagree about what is best for the child, it is the parent with custody who gets to make the final decision.
In addition to decision-making, custody often, but not always, includes the physical care, control, and upbringing of the child. The child usually lives with the parent who has custody.
What are the different types of custody?
In this situation, one parent has sole custody and the other parent has access. The child lives most of the time with the parent who has custody and that parent has the legal right to make all the major decisions about how to raise the child. The child may spend time with the parent who has access, and may even regularly stay at his or her home. But the main responsibility for raising the child and the right to make important decisions regarding the child belongs to the parent with custody.
Another type of custody arrangement is joint custody. Parents who have joint custody share the rights and responsibilities of custody even though they live apart. Both parents have the right to make decisions about their child.
Joint custody is more about who can make decisions concerning the child than it is about the time the child spends with each parent. The child might life half the time with each parent or most of the time with one parent. Either way, both parents have the right to make decisions about important matters concerning their child. Courts are reluctant to order joint custody if both parents do not agree to work together.
When parents go to court to get a decision about custody and access, or when custody and access are decided in connection with a divorce or other issues, the process can take a long time. If the parents cannot agree about where the child will live in the meantime, either parent or both of them can ask the court for a temporary order. A temporary order sets out what the custody and access arrangements will be until the court hears the case and decides all the issues.
The longer a temporary custody arrangement has been in place, the more important this becomes for the final decision. It is important for a parent to act quickly if he or she wants to change existing custody arrangements.
What is access?
If one parent has custody of a child, the other parent usually has access. Access is the right to spend time with a child and the child’s right to spend time with that parent.
Access also includes the right to ask for and be given information about a child’s health, education, and welfare. The parent with custody has an obligation to keep the parent with access informed about these matters. In addition, other authorities, such as the child’s school, doctor, and daycare providers, must provide any information or reports requested by the parent with access, in the same way that they provide these for the parent with custody.
Who can get custody and access?
Usually it is a child’s biological or adoptive parent who gets custody. But in some cases other family members, such as a grandparent, step-parent, or an aunt or uncle can get custody. The law allows any person to apply to the court for custody, but it is harder for a non-parent to get custody.
Access can also be given to other family members and, occasionally, to non-family members who have a close relationship with the child.
How does the judge make a decision?
Both the Divorce Act and the Ontario Children’s Law Reform Act say that the judge must decide custody and access based only on what is in the child’s best interests. It is the child’s best interests, and not the interests of either parent, that must be the only consideration.
Some of the things taken into consideration in deciding what custody and access arrangement would be in the child’s best interests are:
- the emotional ties between the child and each person seeking custody or access, other family members who live with the child, and anybody else involved in caring for the child,
- the child’s wishes (when the child is mature enough to know and express them),
- the stability of the child’s present home environment and how long the child has been in that home,
- the ability and willingness of each parent to take care of the physical, emotional, and other needs of the child,
- the plans each parent has for the care and upbringing of the child,
- the permanence and stability of the family each parent would provide,
- the biological or adoptive relationship between the child and each person seeking custody or access (this is usually considered when someone other than a parent, for example a grandparent or step-parent, is seeking custody or access),
- the person who has done most of the parenting until now.