Custody and Access

Custody is the rights and responsibilities of the children’s care and upbringing. There are various types of custody, such as joint custody, sole custody, shared custody or shared parenting, and split custody or split parenting. Parents should agree to the type of custody that will be in the “best interests” of the child. The Court will only consider the “best interests” of the child when making a Parenting or Contact Order.

Parents may agree to joint custody where they share in parental responsibilities and make all major decisions about the children together. To choose this type of custody requires a willingness by both parents to work together to ensure the success of the arrangement. Decisions such as where the children will live, where they will go to school, whether they will have certain medical treatments and so on are made by both parents together. Joint Custody does not mean that the children live half time with each parent. It means that both parties can put aside personal differences to make cooperative decisions about their children.

Sole Custody is where the children live with one parent who has sufficient authority to make the day-to-day decisions and the major decisions for the welfare of the children. The other parent would be given generous and liberal contact or access, and continue to assume financial responsibilities to pay maintenance. Parents who choose this type of custody usually are unable to communicate or make decisions cooperatively regarding their children’s needs and situation.

Shared Custody is where the children live more or less equally with both parents. Split Custody is where the siblings have been separated and each parent has custody of one or more of the children. These types of custody allow a deviation from the Federal Child Support Guidelines by determining the differential between the amounts set out in the Federal Child Support Guidelines for each spouse. The Court will order the differential amount between the two table amounts be paid by the higher-paying spouse for the child’s care and upbringing.

It is a child’s right to have access or contact with both parents, so the right to have access or contact cannot be retracted by any mutual agreement. The parent who wants to have contact with the child must apply for contact with the child under the Family Law Act or apply for access with the child under the Divorce Act.

Access can be set out in a specific schedule or it may be left as reasonable access. Reasonable access means a flexible schedule as agreed to by the parents. The parents may agree or the Court may order that access includes other rights such as receiving report cards from school, attending parent-teacher interviews and the right to participate in decisions about medical treatment. There may also be conditions or restrictions placed on the access such as the access parent not being allowed to consume alcohol before or during access visits.

If the parents can agree on access and custody arrangements, the agreement should be drawn up by a lawyer. There are certain formalities that are required to make it legally binding. Where the parents cannot agree on access and custody, the Court will make a Custody and Access Order. The Court will base its decision based on the best interests of the children. The Court will consider the following factors:

1. Which parent has been mostly responsible for the care of the children up to now?
2. Does either parent have problems or exhibit behavior that would make it harder for them to properly care for the children? For example, mental instability, alcohol or drug use, or criminal activities.
3. What kind of environment does the parent propose for the children? For example, what type of housing does the parent live in, what is the distance to the school, what is the parent’s work schedule and who are the proposed caregivers? Is there any support from the family members or friends?
4. What is the parent’s plan for the future? The Court will want to know if either parent wants to move or make major changes in lifestyle in the near future. If a parent is involved in a new relationship, the Court will consider that person’s character and suitability as a potential stepparent.
5. Will the parent cooperate to allow access to the other parent? If a parent works to prevent the other parent from seeing the children or does or says things to make the other parent look bad in the children’s eyes, the Court may be reluctant to give that parent custody.
6. If the child is older, the Court may consider where the children want to live. Children’s wishes are not considered until they reach a level of maturity. Usually a child of 12 or 13 years is asked to participate in the decision. The Court will not consider the wishes of a younger child and may look down upon a parent who wants to put a young child in the middle of the parent’s dispute.
7. What about the other children? The Court will not separate brothers and sisters without a good reason.

Court Applications may take several months or longer to have a trial scheduled. During that time, the Court will make a temporary or interim Custody and Access Order. The Order will set out where the children will live and how decisions will be made until a final decision can be made. In an emergency situation, for example, if a parent is afraid that the other parent may harm the child, the Court may make an Interim Order without giving notice to the other parent.

The Court will not consider the gender of the parent in its decision on custody. There is no automatic preference given to either the mother or the father. The financial status of the parents is not considered. The Court will not choose one parent over the other simply because that parent makes more money or has a bigger house. The Court will not consider which parent was at fault for the marriage breakdown. The Court is not concerned with the details as to why the parents’ relationship ended. The exception is when the parent’s behavior has a direct impact on the children. For example, violent behavior that took place in front of the children.

If circumstances change after an Order is granted, an application can be made to the Court to vary or change the Custody and Access Order. When the Court is asked to vary a Custody and Access Order, the focus is on the “best interests” of the child, not the interests and rights of the parents.

Sometimes, the parent with custody may want to move to another city. You should consult with a lawyer before you move so that you are not in breach of your Court Order. If the other parent does not agree, then you may have to make an application to the Court for permission. The Court will consider the reasons for the move, the involvement the other parent had in the lives of the children until now, and the difficulty the other parent will have in exercising access in the future. For example, what is the distance and what are the costs and can the access parent afford to pay the costs of exercising access? The decision of the Court will be based on the best interests of the child.

A Custody and Access Order made in one province may not be recognized if the children are in another province. If the parent with the children moves to another province, the Court there should be contacted to find out how the Order can be registered there.

Where parents cannot agree on custody, access or contact, and wish to avoid the Court making decisions for their children, there are alternatives. For example:

• Mediation. A mediator is specifically trained to help discuss issues calmly, explore options and negotiate an agreement. Mediators may be lawyers, but do not have to be. A mediator does not give legal advice nor do they take sides in the dispute. Free mediation services are offered by Alberta Justice if you qualify for their service. You may also hire a private mediator through the Alberta Family Mediation Society.

• Custody Assessment. This is sometimes called a home study. A social worker, psychologist, or psychiatrist is chosen to do the assessment. They meet with the parents, friends and relatives of the parents. If the children are old enough, the assessor meets with them. Otherwise the assessor will observe the children with each parent. They may ask the parent to complete a psychological test. The assessor writes up a detailed report and makes recommendations on how to settle the issues. The assessor may testify in Court if the parents go on to trial. The cost of the assessment is paid by the parents, but if ordered by the Court, the cost may be partially subsidized by the Provincial Government.

• Lawyer-assisted Settlement. The Courts have several programs to help negotiate settlements between parents. Some of these are Judicial Dispute Resolution or Mediation, Pre-trial Conferences and Mini-trials. The parents or their lawyers discuss the case on an informal basis with the Judge and get input or help with the Settlement. If the case is not settled and it goes to trial a different Judge will hear the trial.