One of the most common issues that arises when there is a breakdown of a relationship is that of child custody and access which involve questions such as which parent the children will be living with and when and how often the other parent will be able to see the children. However, the core issue in custody and access is really the question of who will make the major decisions pertaining to the children.
Frequently, we try to resolve these issues through negotiation or mediation to create an agreement that can be incorporated into a formal Separation or Parenting Agreement (see Domestic Contracts). However, in the case of high-conflict divorces or separations, the parties often require the assistance of the court to resolve these issues.
Above all, the Family Law Rules and the case law make it very clear that, when resolving issues pertaining to children, the “best interests” of the children should govern.
Individuals often misunderstand what is meant by the term “custody”, most people believe that it reflects where a child will live. Rather, custody is a about which parent will make the major decisions pertaining to the child(ren)’s health, education, and religion. Parents can have “joint custody” meaning that both parents will make the major decision affecting the child(ren) together, or “sole custody” meaning that one parent has the authority to make all major decisions, without any reflection on where the child will reside.
On the other hand, a “parenting plan” would reflect where and with whom the child(ren) will reside, and how the child(ren) spend their time with their parents. There are various living arrangements that can be made, and the arrangement should reflect the child(ren)’s best interests.
When a child primarily resides with one parent, the other parent will generally seek “access” (visitation). The type, and frequency, of access varies with each case and, again, the best interests of the child(ren) is the priority. There really is no typical access schedule and each parenting situation should reflect the individual family’s needs and preferences. Further, in some circumstances, access may need to be supervised.
It is also important to recognize that the law provides all parents with access to information pertaining to their child(ren) such as updates about their health and how they are doing in school.
It is important to remember that access is a separate issue from child support and that a support paying parent, who has defaulted in paying child support, should not in turn be denied access to his or her child(ren).