When two people have a child together, each parent has an equal right and responsibility to take part in the upbringing of the child. The equal right to make decisions about their child’s care and how their child is raised exists whether or not the parents are married.
Typically in a two-parent, intact family, parents share the decision-making authority. When parents separate, however, they must arrange how they will share or divide their respective parenting rights and responsibilities. In other words, separating parents must make arrangements for child custody and access.
If you are divorcing or separating, you need a skilled lawyer to make sure your custody rights are protected. Feldstein Family Law Group P.C. has been serving clients across Ontario since 1994, and we have the necessary skill and experience in divorce and family law to effectively preserve your rights and interests.
What Is Custody?
Custody is the right to make the important decisions about the care and upbringing of a child. Custody includes the right to make decisions regarding the child’s religion, school and educational programs, and medical treatment.
Different types of custody include sole custody, joint custody, shared custody, and split custody:
If a parent has sole custody of a child, it means that only one parent has the responsibility and legal authority to unilaterally make major decisions about the child’s care and how the child will be raised. Most commonly, the child lives primarily with the parent who has sole custody.
Sole decision-making authority is often given to only one parent where there is serious parental conflict; concerns of abuse, violence, drug or alcohol abuse; mental illness or demonstrated poor judgment. A sole custody arrangement helps mitigate concerns or limit risks in the life of the child.
Separated parents can opt for joint custody in cases where they are in agreement on major issues affecting the life of their child and they have few or no concerns about each other’s judgment.
In Ontario, joint custody is when parents share the rights and responsibilities of custody even though they live apart. Under this custody arrangement, both parents legally have an equal say about the major decisions affecting their child. Neither parent has the right to unilaterally make major decisions about the child’s care. With joint custody, it is assumed that the parents can reach decisions either by consensus or by one acquiescing to the judgment of the other.
Joint custody requires cooperation and works best when there is little conflict between the parents, since it promotes that the parents maintain a harmonious relationship. Joint custody can also work in cases where there is moderate conflict, but the parents are able to resolve disputes maturely.
A common misunderstanding about that joint custody is that both parents also have equal access to the child. This is not always the case. When parents have joint custody of a child, the child may live primarily with one parent, or there may be a shared custody arrangement. Regardless, joint custody only relates to the decision-making authority of the each parent; it has minimal influence on the amount of time the children spend with each parent.
Unlike the other custodial arrangements, shared custody has to do with the amount of time the child spends with each parent for the purpose of determining each parent’s respective child support obligation. Under the Child Support Guidelines, shared custody exists where a child lives at least 40% of the time with each parent. The 40% time can be comprised of weekends, overnights, and parts of vacations.
Although not very common, another type of custody arrangement is split custody. This exists where the parents have more than one child together, and each parent has one or more of the children living primarily with them.
What Is Access?
When one parent is awarded sole custody of the children, the other parent is normally granted the right of access. This is sometimes called visitation. In addition, if both parents have joint custody of a child, but the child’s primary residence is with one parent, the other parent is granted the right of access.
Access visits can either be unsupervised or supervised, depending on what is in the best interests of the child. Most often access is unsupervised. This is where the child goes to visit the parent, and no one else needs to be present while the child and the access parent are together.
A typical access schedule involves the child spending alternate weekends and one or two evenings or nights per week with the parent not having primary care and control of the child. Typically, the access parent will also share holidays, including statutory holidays (long weekends), winter school break, March break, and summer holidays.
Custody vs. Access
Once you and your former spouse/partner have made the decision to separate or divorce, there are a number of issues for the two of you to consider and resolve. If you have children, you will need to make some tough decisions about your kids’ custody and care. These decisions will have to be made whether you were legally married or living together as a common law couple. As separated or divorced parents, you will either be awarded custody of your children or given access to your children.
The main difference between custody and access is that, as the custodial parent, you usually have the power to make important decisions about the care and upbringing of your child with regards to:
- School and educational programs; and
- Medical treatment.
On the other hand, if you are only granted access rights, as the non-custodial parent you have the right to:
- Visit your child; and
Ask the custodial parent, your child’s teacher, doctor, daycare provider,
etc. for information about:
- Your child’s health;
- Education; and
It is important to note that as an access parent you are not granted the authority to make any important decisions regarding the upbringing of your child. If a disagreement arises between you and your former spouse/partner, the custodial parent will make the final decision. However, the custodial parent in your situation must still consult with the access parent prior to making any final “important” decisions.
Marital status is relevant in order to determine which Act will apply to your particular situation. Therefore, if you are legally married and in the process of getting a divorce or have already obtained one, the Divorce Act R.S.C. 1985, c.3 will apply. For situations where you and your former spouse/partner are married and have decided not to obtain a divorce, are living together as a common law couple, or are not cohabitating but have a child together you must use the Children’s Law Reform Act R.S.O. 1990, c. C.12.
Find out more about custody and access as it relates to your individual situation. Call (905) 581-7222 today to speak with an Ontario custody lawyer about your rights.