Custody and Access Guide

Probably the most difficult part of any marriage breakdown is making arrangements for the children. Who will they live with? Who gets them on Christmas? Who decides what school they go to?

It is hard to talk about these things when you are breaking up, but it is the best thing for the children if you and your spouse are able to come to an agreement on the best arrangements for their care. If you cannot do it yourself, mediation is avialble or your lawyer may help you negotiate a resolution. As a last resort, you can ask the court to decide.

In Edmonton, before the Court will hear any applications for custody and access, the parent making the application must attend a course called "Parenting after Separation". Arrangements for this course can be made by calling 413-9805.

Under Canadian law, when parents cannot agree on who the children should live with, a Judge must make a decision based on what is in the children's best interests. An important factor in determining what is best for the children, is continuity. For this reason, the parent who was primarily responsible for carrying for the children prior to the separation, is more likely to be successful in obtaining custody.

Of course other factors are taken into account as well. For instance if the "primary parent" is not able to provide proper living arrangements or has mental health problems, the other parent may get custody. The ability of each parent to meet the children's educational needs may be considered. Older children's preference may be taken into account. In many cases, the court will order a custody assessment before making a final decision.

Custody orders almost always deal with access, which is the right of the non-custodial parent to spend time with the children. The Divorce Act states that a child should have as much contact with each parent as is consistent with the child's best interests. When parents live in the same city a common access arrangement is that the non-custodial parent has the children every second weekend, on a weekday in the alternate week, alternating Christmas holidays and spring breaks and part of the summer holidays. However access can vary greatly depending on circumstances. If parents are able to co-operate access can be very flexible. This often works to the advantage of both parents and children.

Courts frequently order joint custody of the children. Contrary to popular belief this does not mean that the children spend half their time with each parent. Usually a joint custody order specifies that the children live with one parent. However by virtue of having joint custody both parents have a say in important decisions regarding the children. Joint custody works best when parents are able to co-operate.

Custody and access orders are never final. If circumstances change either party can apply to the Court for a variation which will be granted if the Judge believes it is in the best interests of the child.

At Birkett Ticoll our goal is to assist you in finding an effective and practical solution to your family law problems. Call us for a free telephone consultation.

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