Oshawa Child Custody and Access Lawyers
Contrary to popular belief, following a separation or divorce, mothers do not automatically get custody of their children any more than fathers are automatically excluded. Both parents, however, should be aware that the way in which they conduct themselves in this new phase of their relationship will play a significant role in how the court may rule if the dispute between them escalates. A parents’ behavior towards both their ex-spouse and their children will ultimately affect what the court thinks is best for the children.
The Difference between Custody and Access
In family law, custody refers to a parent’s legal responsibility to make major decisions about their children (i.e. health, religion, education, etc.), whereas access refers to time spent with the children.
The law holds that children need both parents in their lives unless there are extenuating circumstances. Some of the most important decisions that need to be made during the separation process is who will have custody of the children, and who will make decisions on their behalf.
It could be that the kids will live with mom during the week and spend weekends with dad; maybe they will live with dad and spend every other weekend with mom along with every Wednesday. In other cases, the parents may live so far apart it is logistically preferable for the children to go do school with one parent and spend the holidays with the other. Or the custody could be split 50-50 with the child or children spending equal time with each parent. This usually means they will attend the same school and both parents have to maintain a cordial, non-combative relationship to make it work.
In family law, custody refers to the bundle of rights and responsibilities that the parent or guardian with custody has towards a child or children. By default, the starting point in every custody decision is that “except as otherwise provided ….the father and the mother of a child are equally entitled to custody of the child.” However, custody decisions are ultimately made based on the specific circumstances of each family, and can take a number of formats: one parent can be awarded sole custody, parents can share joint custody, or parents can share joint custody with specific caveats or provisos added that reflect an arrangement that best suits the needs of the children.
A person who is awarded sole custody is responsible for the child/children daily, and is the person responsible for making major decisions on behalf of the child/children.
In a joint custody arrangement, both parents have equal input on all major decisions affecting the children. Contrary to popular belief, joint custody does not mean the child or children spend fifty per cent of the time at each parent’s home; however, recently, many couples have agreed to joint custody arrangements with the added proviso that children spend a certain amount of time with each parent, for instance, half the week or alternate weeks.
In a shared custody arrangement (also known as “joint physical custody”), the children live at least 40% of the time with each parent. This time can be divided into overnights, weekends, vacations, and holidays, depending on the circumstances of the family and the parenting plan agreed to between the ex-spouses.
There are benefits to each type of arrangement, and parents seeking to finalize a custody arrangement should always obtain legal advice before doing so. At Borden Family Law, we can explain all the options to you so you can best decide which course to pursue.
Access refers to the visitation rights of the non-custodial parent. The parent without custody has the right to visit and spend time with their children and to be kept informed about the child’s health, education, religion and general well-being.
If there is physical violence or emotional abuse, the court may decide that a parent should not be a custodial parent and may even decide to order only supervised access, meaning that the parent can only spend time with their child in a public place under supervision by a third party. This is done to protect the best interests of the children while still ensuring that they see and spend time with both parents. This can be a challenging arrangement for all involved, and may require advice from a family lawyer experienced in such matters. At Borden Family Law, we regularly help clients who have been affected by violence or abuse. We can work with you to ensure you have an arrangement in place to keep yourself and your children safe, while still allowing supervised access to your ex-spouse.
It is important to note, with respect to issues of access, that child support should never be treated as a ransom for the price of access. Child support is a separate legal obligation towards your child that has no bearing on access. If a parent stops paying child support, you cannot “get even” with that parent by preventing him or her from seeing the children. Conversely, if the other parent prevents you from spending time with your children, you cannot stop paying support to “get even.” Nor can you stop paying support if your child decides they don’t want to spend their weekend with you. Any change in support payments must be made by a court.
Contact Borden Family Law in Oshawa for Legal Guidance on Custody and Access
Each custody and access case is different. At Borden Family Law, we will walk you through the options and help you decide what’s best for your children.
Both access and custody are complex legal issues with a very emotional element. Parents going through separation or divorce need good, experienced, and independent legal advice to help them navigate their new reality, work through the arrangements, and ensure that the best interests of their children are protected. At Borden Family Law, our team has been helping clients with separation, divorce, custody and access for more than 17 years. We have the experience and knowledge necessary to help you come to the most optimal arrangement. Call us at 905-597-6090, or contact us online. Ask about our flat fees and bundled packages.