What is "Custody" and "Access"?

"Custody" and "Access" are terms the law uses to talk about decision-making for children.  Those decisions may include, but are not limited to:

• when the child is with each parent (schedule of who the child will be with)
• where the child lives
• who the child has contact with
• major decisions about issues such as education, health, religion, etc.
• minor daily decisions about issues such as meals, haircuts, dress, etc.

If one parent has "sole custody", it means that parent has the authority to make the decisions, except for those areas set out in an agreement or court order.  The most common exception is access - provisions about the other persons contact with the child.  Usually with access comes the authority to make minor decisions for a child, when the child is in that parent's care during access.  Access includes visits and communications.  Only in the most extreme cases, will a parent (who has been involve with the child in the past) be not granted access to the child, of some sort.

"Joint custody" refers to a joint decision making arrangement.  This usually includes a schedule of when the child is in the care of each parent.  (The term "access" should not be used where there is "joint custody".  Instead, there should be references to  "periods in the care of".)  The phrase "joint custody" gives little practical guidance in itself -  the detailed terms of "joint custody" are what gives it meaning.  The terms of a "joint custody" arragement could be created in a way that most decisions and responsibility goes to one parent, or it could mean an equal parenting arrangement.  Joint custody is only appropriate where the parents are, in actual fact, able to make decisions together - it can be harmful to a child where there is high conflict.

Sometimes certain the decision making is divided up, with one parent making decisions about some issues, and the other parent having authority over other decisions.

Without an agreement or court order, parents are presumed to have joint custody.  There are rules that result in one parent having custody alone, if the other parent informally agrees or "acquiesces" (takes no action to dispute) the parent's de facto (i.e. "in fact") custody.  However, this is of limited value - it is better to make a formal agreement or obtain a court order.

Sometimes the agreement or court order will specify the terms of a decision.  For example, it could specify:

• where the child ordinarily resides
• terms for travel by the child
• that the child not have contact with certain people
• that neither party smoke in a residence where the child sleeps

How Do Judges Decide?

If a judge is called to make a decision about custody and access, they will do so based on "the best interest of the child".  A judge will look at a number of factors, such as:

• history of child care
• relationship with the child
• parenting skills
• plans of care
• willingness to support the child's relationship with the other parent
• any history of violence or abuse between the parents or toward the child

Decisions about custody and access are focused on the child, not the rights of parents.  Generally, both parent should be as involved with the child as possible.

Do You Need a Court Order or Formal Agreement?
There is a saying that "strong fences make good neighbours". When it comes to family law matters, even when the parents are working together well, it is wise to have clear written agreements. You may put the agreement in a drawer and never take it out, but you will both know it is there. It gives structure and predictablility. It can reduce the chances of disputes in the futhur. And if there is a dispute, the agreement may resolve it.  The future is unpredictable and things change.  The introduction of a new spouse of a parent may have a very negative or very positive impact on parenting cooperation.

A court order is advisable when there is a lack of trust or a history of abuse / violence.  Sometimes an order is required by a third party, like a government.

Do You Need A Lawyer?
As always, get good legal advice, so you know what you are dealing with.

Often there is no real issue about which home a child lives, but rather about the involvement in decision-making, about preceived "status", and about access.  Usually such disputes are worked out over time.

However, there are some cases that have high risk and you should hire a lawyer, if:

• there is a serious dispute about who the child lives with
• there has been violence or abuse to a spouse or a child
• the child is at risk in the care of one of the parents, even for short periods
• there is high conflict between parents and one party insists on joint decision making