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 FAQs
Custody and Access
What is custody?
Custody is having the care and control of a child. This means having the authority to make the major decisions about the child. When a marriage or relationship breaks down parents must decide on arrangements for the care of the children. The law recognizes the equal right of each parent, whether or not they are married, to have custody of their children. Parents may be able to choose either sole or joint custody. Another less common arrangement is split custody.
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How do we decide about custody and access?
You and the other parent can agree on who will get custody and how access will work. You can put the agreement in writing in a custody agreement or include it in a separation agreement. Because this is such an important issue, you should each consult a lawyer. If you need help to reach an agreement, you may want to try the services of a mediator. If you cannot agree, you can apply to the court and a judge will decide for you. The judge will issue a court order, which sets out the legal responsibilities, rights and obligations of both parents. You will likely need the help of a lawyer to apply to court.
*For detailed information, please refer to “Custody and Access”
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What does “best interests of the child” mean?
Judges make custody and access decisions based on what is best for the child, not what is best for the parent. The judge only looks at what is in “the best interests of the child”. The judge may look at the following:
- the needs of the child (mental, emotional and physical health);
- the effect a disruption would have on the child;
- the love, affection, and ties between the child and the parent;
- the plans you have to care for the child;
- the stability of your home;
- the child’s culture or religion;
- the views and preferences of the child.
The court may consider your willingness to provide access and support the relationship of the child and the other parent when deciding custody of the child. If you refuse to cooperate, you might not get custody.
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If we agree on custody and access, why should we bother getting a court order?
For parents who separate it is very important to have terms of custody and access set out by a legal agreement or court order. If the children live with you without a court order or legal agreement (de facto custody), it may be hard to enforce your rights if the other parent decides to take the children. If you are a parent with access and the parent with de facto custody denies you access, you may not be able to enforce your rights.
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Can we change a custody order or agreement?
As long as it is in the “best interests of the child” you may change an existing order. Informal changes of a court order have no legal effect and may jeopardize further rights. For example, a couple may agree to follow a new agreement without changing the court order. If one parent suddenly decides to break the informal agreement, the other parent cannot go to court to enforce it. It is best to apply to have the order varied. You can have an agreement or order varied by consent. A judge would sign the changed agreement or order making it a court order.
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If a parent breaks a condition of their parenting order or agreement, such as not bringing the children back on time, can the other parent call the police to go get them?
Family court orders/agreements are between two people, two private citizens – this area of law is called civil law. Police enforce criminal law, not civil law. If one parent is consistently breaking the conditions of their order, the other parent would have to ask their lawyer to apply to family court to deal with the problem.
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If a parent stops visiting with the children, can he or she stop paying child support?
No. Support is a separate legal issue from custody and access. When making decisions about custody and access, Courts only consider the best interests of the child. Whether a parent visits with the child will not influence the Court’s decisions on child support and vice versa.
For more information, see our fact sheet “Can a Parent End All Rights and Obligations to a Child?”
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Can I get the Court to force the access parent to visit the children?
No, the Court will not force visitation.
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