Custody, Access, Parenting and Separation

October 10th, 2013 by

If my “Ex” has sole custody of our children does that mean that I am not allowed to see them?

Mother and the son When it comes to sole custody, the answer is no. While the term “custody” is used colloquially to refer to the living arrangements for a child with their parents, that is not the legal definition. Generally speaking, the custody arrangement for a child should not affect the “access”, or parenting, schedule.  Understanding this important distinction can greatly diminish conflict between parents in the early days of Separation.

The term “custody”, in a family law context, refers to the right to make important decisions about a child’s life. Specifically, with respect to what are termed the “incidents” of custody:  medical care, education and religious upbringing.  As a parent, you should be aware that when two parents separate, and the child is living with the other parent with your consent or acquiescence , then the right to exercise your rights to custody are suspended.  The parent with whom the child lives is deemed to have, what is known as, de facto custody. However, despite this, a court can also make an order for “joint custody” in which the parents continue to make decisions about their children together.

As custody relates only to decision making, it should be clear that not having custody of your child does not mean that you do not have the right to see, know and be involved in your child’s life.  The circumstances are exceptionally rare, in family law disputes, where a parent would not have at least some access to their child.  Your right to access cannot be suspended by the other parent, although they can make co-parenting more difficult.  Only a court, or temporarily the Children’s Aid Society, can suspend or terminate a parent’s right to access.  “Access” refers to a parenting schedule that is either ordered by the court, or to which the parents agree. It is time that each parent is allowed to see and spend with their children. Both Parents should encourage their children to see and have a good relationship with the other parent.  A right to access also includes the right to be kept informed of what is happening in the child’s life, and includes the right to receive report cards, information about medical and dental appointments and important milestones in the child’s life, even if the access parent is not necessarily making the actual decisions themselves.

The most important idea to remember when dealing with sole custody and access, is what is in each child’s best interest (the test for which is set out in case law and s. 24 of the Children’s Law Reform Act). If both parents remain reasonable, and respectful of each other, then it is very possible to see, and parent your children equally.

For more information about our Family Law team visit our Family Law page.


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