Custody And Access to Children
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Contents
Custody And Access Of Children Of Married Parents
The “Best Interests” Of The Child
Guardianship
If the mother and the father are married to each other they are both the guardians of the child. Being a guardian to a child gives a person the right to be involved in the custody of the child. However, a person who is the guardian of the child does not automatically have a right to custody.
Guardians are each responsible for making all significant decisions affecting the child and each have a right to sufficient time with the child. Guardians have a duty to cooperate with each other in matters that affect the child. If guardians are seeking a divorce and cannot agree, they can apply to the Court for a custody or access order.
Custody and Access of Children of Married Parents
When married parents are in the process of getting divorced, they often need assistance to cooperate in raising the child. It is always best if couples are able to reach some friendly agreement. However, where an agreement is not possible, the Court will make an order regarding custody and access, taking into account the “best interests” of the child.
While married, each parent has equal rights to custody of the child. This means that each has equal obligations and responsibilities for the care and upbringing of the child. Once divorced or separated, these obligations and responsibilities may be changed by written agreement between the parties or a court order.
Custody
1. What is Custody?
As well as granting a divorce, the Court has the power to order which spouse will have custody of the child. The parent awarded custody of the child is given the right to control and make decisions regarding the child. In the past, there was a strong presumption in the courts that a mother should receive custody of any children in the marriage, especially if they were young children (under 7 years of age) or if they were girls. However, the Court now tends to look at the situation of each parent equally. Custody will usually be given to the person asking for it if there is no dispute. If both parents want custody of the child, the Court will make a custody order according to what it feels is in the “best interests” of the child. It is also possible, particularly if both spouses agree, for the Court to grant joint custody, which will give both parents shared decision-making authority regarding the child.
2. Parental Responsibilities
When a parent has custody over a child that parent has both rights and responsibilities. Parental responsibilities include, but are not limited to, a duty to:
- Provide day-to-day care and control of the child (food, shelter and clothing).
- Supervise the child’s daily activities.
- Meet the required ordinary health, education and welfare needs of the child.
3. Types of Custody
A common type of custody is sole custody. This means that one parent has a full right to custody to the exclusion of the other parent. The child would reside with the sole custodial parent and the sole custodial parent would make all of the decisions for the child. The parent without sole custody usually has access or visitation with the child and a right to information about the child. This type of custody may be subject to conditions. For example, the custody order might state that the child must remain in the province.
A second common type of custody is called joint custody. Joint custody works best when both parents have remained on good terms and can discuss matters concerning the children in a reasonable way. Usually, the child will live with one parent and the other parent will have generous access to the child, although there are many different types of joint custody including the child spending equal time with each parent. The rights and responsibilities toward the child remain the same as before the break-up of the marriage. This means that both parents have equal say in the areas of major medical treatment, education, and religious decisions. One form of joint custody requires the child to switch back and forth between parents for certain periods of time; for example, one week with one parent and one week with the other or weekdays with one parent and weekends with the other. This is usually only possible where the parents live close to each other so the child does not change schools. The parent with physical control at any one time generally makes decisions regarding day-to-day care. Major decisions are to be made by both parents together. Joint custody may also include a provision that, while the parents share some rights and obligations with respect to the child, one home is the main or primary home of the child. The Divorce Act recognizes joint custody because it provides for custody to be awarded to either or both parties.
The primary consideration in awarding custody or access rights is the “best interests” of the child. A custody order issued under the Divorce Act can be for a limited time or it can be a final order. The Court may also impose conditions or restrictions on any custody order. An example of this would be where a Court granted sole custody to one parent on the condition that he or she attend counselling. It is also important to note that a custody order may be reviewed by a court and varied if a change in circumstances is shown.
4. When Parents Disagree
As long as there is no court order to the contrary, parental rights and responsibilities are to be exercised jointly by the mother and father who are both guardians. It is assumed that the two parents will reach an agreement on major decisions affecting their child. Until there is a court order, neither parent has the right to deny the other parent the right to see the child.
Access
1. What is Access?
Usually a Judge will also order that the spouse who does not have custody of the children be able to visit the children. This is called an access order. The term access means visiting rights. Where and when visits will take place, their length, and any other conditions are matters that may be decided by written agreement or by court order. Access is considered to be a right of the child and therefore the Court tends to vigorously protect this right.
It is rare to see access to the children completely denied. In exceptional circumstances, the Court will deny access. These rights of access are very important as they permit both the child and the parent without custody a chance to maintain an emotional bond despite the break-up of the marriage.
Because access is a right of the child and not a right of the parent, a parent with custody cannot refuse access to the parent without custody unless there is a court order that says otherwise. If a parent with custody refuses access, he or she can be cited for contempt of court and be fined. A repeated refusal of access could be a major factor in the Court ordering that the other parent be given custody of the child.
2. Rights of an Access Parent
As explained above, the parent with custody has the obligation for the day-to-day care and control of the child. However, the parent who is not awarded custody still has many important legal rights.
These rights include:
- to oppose the adoption of the child by a third party and to be given notice of an adoption hearing;
- to receive notice of and to be heard in any criminal proceedings against the child;
- to receive notice of a hearing if the child is considered to be neglected under the Child, Youth and Family Enhancement Act;
- to share equally in the child’s estate should he or she die without a will;
- to consent to or to oppose a change in the child’s given name or surname under the Change of Name Act;
- Under Section 16(5) of the Divorce Act, the non-custodial parent who has been granted access to his or her child has a right to make inquiries and to be given information as to health, education and welfare of the child, unless the court order says otherwise;
- to apply for access.
This is not an exhaustive list.
3. Types of Access
Reasonable - Parents may decide between themselves when access should be granted. If they are unable to agree, they may approach the Courts to receive a specified access order.
Conditional - Where certain conditions must exist before access is allowed.
Supervised - The spouse wanting access may only visit in the presence of another adult approved by the parent with custody or the Court.
Specified - The court will outline the exact days and times when the spouse wanting access may visit.
No Access – If the court feels that the parent without custody may harm the child, he or she will be denied access completely. This order is very rare.
The "Best Interests" of the Child
The Court will want to ensure the greatest possible protection of the child’s physical, psychological and emotional safety. The court may consider all of the child’s needs when making a custody or access order, including, but not limited to:
- The child’s need for stability, taking into consideration the child’s age and stage of development.
- The history of care for the child.
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage.
- The child’s views and preferences.
- Any plans proposed for the child’s care and upbringing.
- Any family violence.
- The nature of the relationship between the child and the person applying for the order.
- The ability and willingness of the person applying for the order to care for and meet the needs of the child and to communicate and co-operate on issues affecting the child.
- The views of the child’s current guardians.
- Any civil or criminal proceedings that are relevant to the safety or well-being of the child.
In awarding custody or access orders, the most important consideration to the court is the “best interests” of the child.
Court Orders
1. Custody Order Obtained Under the Divorce Act
If a divorce action has been started, the issue of custody will be dealt with by the Court of Queen’s Bench. Parents making an application in the Court of Queen’s Bench should be represented by a lawyer. The first step will be to obtain interim custody. This is decided upon the basis of affidavit evidence which is presented to a Court of Queen’s Bench Justice in Chambers. An affidavit is a sworn statement prepared by your lawyer which lists the facts of the case as the person who is applying for custody views them. The other spouse may file an affidavit in response. After the Justice has looked at all of the affidavits which have been filed he or she will decide what is in the “best interests” of the child. Before bringing on such an application, if you live in Edmonton you must first attend the Parenting After Separation (PAS) seminar. Call 413-9805 to register. This is a free seminar.
In divorces where custody or access are at issue and which have been started in the Judicial District of Edmonton, the spouses are often referred by their lawyers to Family Mediation Services. Call 427-8329 for more information. A mediator is assigned to the case and his or her job is to sit down with the two parents and attempt to assist them to reach an agreement on custody and access. This is a free service.
If an agreement cannot be reached in mediation, the parents may also get an open assessment. The parents choose a psychologist, psychiatrist or social worker from a list provided to prepare the assessment. Such assessments are either ordered by the Court or agreed upon by the parties.
The person chosen by the parents is assigned to do a custody assessment. This person will usually meet with both parents, the child involved, and any other person that may have relevant information on the issue. The professional will provide a report to each of the parent’s lawyers containing his or her recommendation as to what is in the “best interests” of the child. If the parents are still unable to reach an agreement, the matter will be decided by a Justice after hearing evidence at a trial.
The open assessment is not free and each parent must pay half of the total cost of the assessment. The total cost of the assessment can be as high as $10,000 for each party. In certain circumstances the assessment may cost more than this. In cases of financial need, a subsidy for the cost of the open assessment is available by making an application to the Family Court Services. Call 427-8343 for more information.
It should be noted that custody disputes can be extremely expensive.
2. Appeals
Parents who are unhappy with the decisions made regarding the custody and access of the child, may appeal. An order made by a Justice in the Court of Queen’s Bench, under the Divorce Act, 1985, may be appealed to the Court of Appeal as long as the appeal is filed and served within 20 days for an interim custody order and within 30 days for a Divorce Judgment.
3. Varying the Custody Order
A custody or access order is never permanent. A court always has the authority to change the order later if the circumstances change. The Court of Queen’s Bench may change any order originally made by a Provincial Court Judge. However, a Provincial Court Judge may only hear applications for order variations if the original order was made in Provincial Court.
The factors considered by the Court in a custody or access order variation are any material changes in the condition, means, needs and other circumstances since the making of the original order. For example, an order may be varied if the following circumstances exist:
- a. remarriage by one of the parents;
- b. alcohol or drug abuse;
- c. refusal to obey the terms of the original custody order.
This list is not exhaustive. Ultimately, the Court will decide what is in the “best interests” of the child.
As a result of the Divorce Act, a variation order can be heard in the province where either spouse is regularly resident. If the variation is opposed, the Court will likely transfer the matter to the province to which the child is most closely associated and that Court would have exclusive jurisdiction over the matter.
4. Problems with Orders
If there is a change of circumstance in either parent’s life that poses a threat/danger to the child, then the other parent can apply for a variation to the current custody or access order.
If a parent is having problems seeing their child despite having a court order giving them custody or access, they should contact a lawyer who would be better able to assist them in enforcing their rights.
5. Enforcing a Custody or Access Order
Once the Court hands down a custody or access order, the order is legally binding and enforceable throughout Alberta. A custody order made under the Divorce Act, 1985, is valid throughout Canada and may be enforced by any Superior Court Judge in any province. If a parent obtained a divorce in another province, he or she must register a certified copy of the divorce judgment containing the custody order with the Court of Queen’s Bench in Alberta before enforcement actions can begin.
When enforcing time with a child, the court may order:
- appropriate compensatory time with the child
- the applicant be reimbursed for the necessary expenses incurred as a result of denying time with the child
- payment of a penalty of up to $100 per day to a maximum of $5,000 for denying time
- the respondent serve time in prison for up to 90 days for denying time.
If the custody or access order contains an enforcement clause, the police or RCMP will help enforce the order. A parent should take the order to the police before asking for their help. The police will take reasonable steps to find the child and uphold the rights of parents to spend time with their child. If the child is outside Alberta, the local police will contact the appropriate Law Enforcement Agency in the area where the child is located. If you want to ensure that you will be able to obtain assistance from the police, you should ask the Court to consider granting a police enforcement clause as part of the order granted. You should contact a lawyer in the event your child is abducted by your spouse.
6. Abduction or “Child Snatching” Where No Custody Order Exists
A parent of a child who is under 14 years old may be charged with “child snatching” under s. 283(1) of the Criminal Code if that person removes the child from the other parent without permission. If a person charged with abduction or “child snatching” is found guilty, they may face imprisonment for up to 10 years. Therefore, if a custody order is not in place, a parent should not take their child from the home without letting the other parent know where the child will be.
A parent who is in the process of getting a divorce who takes the child when leaving the home should begin an action for a custody order as soon as possible.
Frequently Asked Questions
Where do I find a lawyer?
Lawyer Referral Service
1 (800) 661-1095
www.lawsocietyalberta.com
Legal Aid Society of Alberta
(780) 427-7575
www.legalaid.ab.ca
What are my options if I do not want to go to court?
There are different services available to help you resolve a family conflict and come to an agreement without going to court. The most common way is through mediation programs run by the Courts, Family Court Counsellors, lawyers or Legal Aid.
Family Justice Services
Family Court Services (780) 427-8343
Mediation Services (780) 427-8329
What is the Parenting After Separation (PAS) course?
The Parenting After Separation (PAS) course is a free 6 hour course that is mandatory for people who live in Alberta and are applying for a parenting, custody or access order in the Court of Queen’s Bench. In Edmonton, call 413-9805 to register.
Where do I find more information?
Family Law Information Centres
(780) 415-0404
www.albertacourts.ab.ca/familylaw/
