“Custody” pertains to who has the day-to-day care of a child. “Guardianship” refers to the parental rights and obligations regarding children.
Divorce and separation is a difficult time for both parents and children, and it is important to determine the rules around custody.
Going forward, you will need to make decisions about the upbringing of your child or children, including the amount of time spent with each parent, education, religion, medical care, as well as establishing guidelines to respectfully handle day-to-day decisions.
If parents are not able to come to decisions regarding where the child or children will live, access to the children and future decisions regarding the children will be decided in court.
The Family Law Act of 2013 now specifies that the only factor to be considered in parenting arrangements is the best interest of the child or children.
In cases where parents can easily come to an agreement regarding custody and parental responsibilities, we can review your Custody Agreement.
In cases where an agreement cannot easily be reached, a judge will hear both parents’ arguments and the courts will make an order based on what the judge believes is in the best interest of the child.
Parenting Arrangements – Also Known As Custody and Access
The previous Family Relations Act used the labels “custody” and “access.” Those labels are still used, but different terms are employed under the Family Law Act, including “parenting arrangements,” “parenting time,” and at times, where relevant, “contact.”
“Custody” or “parenting arrangements” refer to the time that a child is with a particular parent. One parent may be the primary parent while the other obtains what used to be called “access,” being approximately 35% to 40% of the child’s time. There can be many variants of this model, depending on the facts of each case.
In the arrangement known as “shared parenting,” the parents are able to share parenting equally, such as on a week-on basis.
Sometimes there may be what is known as “split custody,” where, in a three-child family, one child would primarily live with one parent while the other two children are under a shared parenting arrangement.
If parties are unable to agree on a parenting model, then the matter will likely proceed to a trial, where the issue of custody or parenting time will be determined by a court of law that hears the trial and decides the child’s best interest based on a number of factors set out in the Family Law Act.
It is the lawyer’s job to marshal the evidence to establish the child’s best interest in conjunction with the client.
Mobility and Custody Issues
As in any child-based decision, it is the best interest of the child that will determine the result. The new Family Law Act provisions are complex and it is best to seek the appropriate advice from your family lawyer before making agreements or decisions.
In some cases, the party with shared or primary care of the children may need to move with the children to a new or distant location, such as for a job or other reason. If the other parent objects to the move, either a trial or summary trial application is held to determine if the parent is able to move.
There are other resources that can be brought to bear on custody disputes, including parent coordinators and Section 211 authors.
Hiring Parent Coordinators
Parent coordinators primarily assist in the resolution of issues that are irritating and difficult, but normally not central to a dispute. Parent coordinators assist with issues related to parenting scheduling (but not “parent time,” per se), medical and dental matters, extra-curricular activities, and choosing medical doctors or specialists when the parties cannot reach such agreements.
There are parent coordinators trained in different disciplines, such as in law or in psychology; each brings a slightly different skill set to the issues.
Hiring Section 211 Authors
Section 211 authors are trained in psychology to write custody and access reports. These reports offer recommendations to the court and the two parties. The parties on consent can choose a particular section 211 author. It is wise to seek your lawyer’s input in the choice. If the parties cannot agree, the court can impose a choice.
The new Family Law Act encourages the parties to seek out-of-court resolutions in custody disputes. Trials are still available where the parties cannot resolve such disputes. However, whatever method is chosen, an early meeting with your lawyer is very important to begin appropriate planning on how best to handle your case. At Thomas & Associates, our trial and appeal lawyers have significant experience in handling difficult custody and access cases.
Read more information about Section 211 Authors.
Are You a “Contact” or a “Guardian?”
Guardianship is a bundle of parental rights related to child-based decisions. The court has discretion to equally distribute guardianship rights and obligations between parents, or to award decision-making rights or obligations to one parent, excluding the other. The discretionary decision that is made by a court is based on the facts and the child’s best interests.
In most cases, if a father did not live with the mother at the time of the child’s birth, the father is unlikely to be declared a guardian unless he establishes a good relationship with the child in the future years. In these cases, where such a parent obtains the right to see the child, the parent is known as “contact,” and a “contact” has considerably fewer rights and obligations than a “guardian.” Parents who are “contacts” may wish to seek guardianship in the future to change that result.
Appeal of Custody Decisions
Where a court makes a decision concerning a child, there are times when one or both of the parents can seek a change of the court order, a change of the negotiated agreement, or a change of both. The first is following trial, where an appeal may be launched. See the section on Appeals.