There is a lot confusion regarding custody and access of the children when parents separate. The most important thing to remember is that from the court’s perspective there is no such thing as parental rights. Everything is viewed from the best interests of the child/children. It is very important to remember this wording in court and in the context of written agreements. The starting point from most judge’s perspective is that it is in the child/children’s best interests to see both parents as much as possible barring any concerning factors that would indicate that it is not in the child/children’s best interests to have maximum and meaningful contact with one of the parents.

Factors judges consider are: whether there has been family violence; whether one of the parents has been largely absent as a caregiver when the parties were together; age of the child and or parent etc. This is a non-exhaustive list and each case turns on its own set of facts.

Ideally the parents can agree as to what type of arrangement is in the best interests of the children. It is always better for the parents and the children if these decisions are made by the parents as opposed to a judge who is not as familiar with the family and its dynamics. Remember that as parents you have to work with each other until the children are independent. It is best if you can find a way to put your differences behind you for the sake of the children (and your own sanity!).

There are many different custody and access arrangements and the key is deciding what works best for your family and most importantly, what works best for your child/children. Some of the most common arrangements are:

Joint custody with shared access: Joint custody basically means joint decision making. Together you are making important decisions regarding your child/children. Important decisions are usually regarding schools, religion, medical etc. I use the word “shared” above in the context of access. In this case the parents are sharing their time with the children. The variety of access schedules can be almost endless from a complicated breakdown of various days with each parent, to something as straightforward as one week with each parent.

For the purposes of child support, shared is seen as anything above 40% of the time with the child/children. Some parents are now going so far as to “nest” with their child/children. Nesting involves maintaining the family home with each parent staying in the home when it is their turn for access. In this way the children never have to move between parent’s homes.

Joint custody with specified access: In this case one parent has what is called primary care and the other parent has access at specific times, such time being less than 40%. Again the access schedule can be tailored to the specific family and there are many different options. The most common choice continues to be every other weekend with the access parent. If it is joint custody there is still joint decision making.

Joint custody with reasonable access on reasonable notice: Again there is joint decision making and one parent with primary care but access in this case is whatever the parents agree to. This type of arrangement only works when the parents are able to work together really well and there is no risk of the primary care giver denying access. Often I see this type of arrangement when the access parent lives far from the child/children or works away much of the time and is near the children for short periods of time.

Sole custody with access: Sole custody means that one parent (the primary care giver) makes all of the decisions regarding the child and does not require any input or consent from the other parent. You would not see this with shared access. This type of custody was much more common years ago. The court is somewhat reluctant to order it now as it ostensibly means that one parent is being cut out of their child/children’s lives which the court deems not to be in the best interests of the child. You see this arrangement most often when the access parent has little contact with the child/children or if the access parent refuses to communicate with the primary parent making it impossible for joint decisions to be made. Please be aware that a primary care parent cannot frustrate communication in the hopes of obtaining sole custody; Judges see through this type of “strategy”.

Sole custody with supervised access: This is the rarest of all arrangements and is usually only ordered by a court when there is family violence or the child/children has not seen the other parent for a very long time and that parent is like a stranger. For the most severe cases, as with family violence, supervised access would normally be through an access program supervised by a professional third party who observes the access and takes notes (the court has information on the supervised access program). In the case of a parent who is basically a stranger to the child/children, the primary parent may be comfortable with access being supervised by a family member or family friend.

Sole custody with information sharing or joint custody with final decision making: These are two options that should be considered if the sticking point is joint versus sole custody. You can either have sole custody with full information sharing and consultation where possible (meaning the sole custodian would keep the other parent apprised of all important information such as medical, schools etc. and possibly even discuss issues with that parent) or joint custody with the primary parent having final decision making authority if the parties cannot agree. The first approach is often a good option where the access parent is concerned about being cut out of the child/children’s lives and the second approach is an option if the primary caregiver is concerned that they will not be able to get things done for the child/children if the access parent refuses to consent to anything.

No matter what arrangement works best for your family just remember that it is almost always in the best interests of your child/children to find a way to work together and to have open communication rather than depend on lawyers or the court process to manage your family affairs.

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