The process of a divorce is incredibly stressful on its own. Maintaining your children's well-being under such circumstances is even more stressful. We understand that the well-being of children is often any parent’s first priority when they separate from their partner. As your family lawyer, this priority passes on to us.
The law recognizes that children may benefit from having as much contact as possible with both parents. Ideally, parents should share the parenting decisions related to their children, as well as time spent with their children. This is where issues of custody and access arise.
Most people are unaware that custody and access are actually two separate terms, mistakenly used interchangeably. “Custody” is a legal term that refers to the right to make major decisions that impact the child, such as religion, medical treatment, education, and where the child will live. "Access" (also known as “parenting time”) on the other hand, refers to the time that the child spends with the parent with whom they do not primarily reside with.
Types of Custody
When a parent has sole custody of a child, they are solely authorized to make major decisions for the child, without needing approval of the other parent. Legally, this means that only one parent has the responsibility to unilaterally make the decisions about the child’s care and how the child will be raised. Usually, the child lives primarily with the parent who has sole custody. Here are some common misconceptions of sole custody.
Under a joint custody arrangement, both parents legally have an equal say about the major decisions affecting their child. Where there is a joint custody arrangement, neither parent has the right to unilaterally make major decisions about the child’s care. Furthermore, the child may either live only with one parent or there may be a shared custody arrangement. Both parents legally have an equal say about the major decisions affecting their child and there is an assumption that the parents can come to decisions regarding the child together.
Under the Child Support Guidelines, shared custody exists where a child lives at least 40% of the time with each parent. The 40% time can include weekends, overnights, and parts of vacations. Please note, that this only refers to the residential agreement, and should not be confused with “joint custody,” which refers to legal custody of a child or children that is shared by both parents after divorce or separation.
Split custody refers to a custody arrangement in which the children are essentially split up, with some of the children living with one parent, and some of the children living more with the other parent. This can only exist where the parents have more than one child together and is uncommon.
What is Access?
Issues of access go hand in hand with custody. For instance, if only one parent has sole custody of the children, the other parent is normally granted the right of access (sometimes called visitation). Additionally, if both parents have joint custody, but the child’s primary residence is only with one parent, the other parent is granted the right of access. Most access visits are unsupervised but they can also be supervised, depending on the best interests of the child.
If parents can come to an agreement on how to split their time with their children, this can potentially prevent disputes regarding the sharing of the child’s time. Where parents cannot agree on the major decisions involving their children or on how the child’s time should be divided, a court can make an order to provide the parties with a solution. Here is a more in-depth article on the difference between custody and access.
If you would like to speak with one of our lawyers regarding any issues regarding child custody or access please contact us at (416) 840-1475 or schedule your free initial consultation here