What Does it all Mean?
Have you ever found yourself scratching your head at the various custody and access terms and phrases? There are so many similar words and phrases; it can often be confusing to those unfamiliar with the terminology. This post will attempt to define those terms and hopefully demystify the legal jargon relating to custody and access. When you understand what it all means, you can better advocate for yourself and your children.
Parent and Child:
The Divorce Act defines a “child of the marriage” as “a child of two spouses or former spouses, who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessities of life. “A child of the marriage” includes “any child for whom both stand in the place of parents, and any child of whom one is the parent and for whom the other stands in the place of a parent”. Similarly, the Ontario Family Law Act defines a “child” as “a person whom a parent has demonstrated a settled intention to treat as a child of his or her family” and a “parent” as “a person who has demonstrated a settled intention to treat a child as a child of his or her family”.
Contrary to popular belief, in Ontario, the term “custody” usually does not mean who a child lives with or how much time a child spends with a parent. Custody is the right to make important decisions for your children (e.g. education, religion, healthcare).
Joint Custody, Sole Custody and Parallel Parenting:
Generally there are two types of custody: joint custody and sole custody.
In a joint custody arrangement, both parents make the important decisions involving the children together. For example, they must both agree on where the children will go to school. Joint custody involves significant co-operation and communication between the parents.
Sometimes the decision making is divided up between the parties. For example, one parent may make educational decisions and the other parent makes medical decisions. This is called “parallel parenting”. A parallel parenting regime may be suitable where both parents love the child and want to play an active role in the child’s life, yet have difficulty communicating or reaching consensus on the child’s upbringing. Parallel parenting has the benefit of maintaining each parent as a meaningful figure in the child’s life, over and above the time that each spends with the child. At the same time, by delineating clear areas of decision-making between the parties, such orders have the potential, in appropriate cases, to disengage the parents and reduce their conflict
In a sole custody arrangement, one parent is responsible for making all of the major decisions for the children. This does not necessarily mean that the other parent has little involvement with the child or children. It simply means that only one of the parents makes the major decisions relating to the children, such as where they go to school, what, if any, religion they practice and what medical care they receive.
Shared Custody and Split Custody:
Shared custody and split custody are terms that actually relate to access and involve parents sharing the time with their children equally (shared custody) or where siblings are split up and live with one parent at least 60% of the time (split custody).
Access, Flexible Access and Supervised Access:
In contrast to custody, access is about time spent with the children. In addition to a regular access schedule (e.g. two evenings a week and every other weekend), a holiday schedule is often created. This helps ensure that there are no arguments between the parties regarding who will spend which holiday with the children. Please note: an access parent also has the right to get information about their children’s education and health from the other parent, schools or doctors.
Access can be flexible (the access is left open instead of having a detailed schedule), fixed (regular and holiday access schedules), supervised by a third-party (where there are concerns for the health and safety of the children), or, in the most extreme cases, non-existent (when serious child abuse has been proven or where a child’s safety cannot be protected through supervision).
A parenting plan is a written agreement (either formal or informal) between parents outlining how they will co-parent the child or children. The terms of the agreement may be negotiated either by the parents themselves or through their lawyers. A parenting plan is not court ordered and may not be appropriate in situations where the parents do not get along or cannot cooperate.
A Parenting Co-ordinator is usually a mental health professional or lawyer. Parenting Co-ordinators help parents develop more effective problem-solving and communication skills and assist parents with the implementation of their Parenting Plan. If there is a dispute with respect to the Parenting Plan, they will try to mediate an agreement between the parties. If that fails, the Parenting Co-ordinator can make a binding decision that is in the best interests of the child (so long as the issue is of a minor or temporary nature).
If you have any questions about how any of the above may apply to your matter, it is important that you speak to an experienced family law lawyer. The lawyers at Radley Family Law can help,