Custody refers to the right and responsibility of a parent to make major decisions for his or her child. Major decisions are generally accepted to include those concerning education, religion, and nonemergency health care.
Sole custody means that one parent makes all major decisions for the minor child.
Joint custody means that both parents make major decisions for the minor child jointly.
Access means the time the non-custodial parent has the child in his or her care. Access includes the right to make inquiries about the child and to be given information about the child’s health, education, and welfare Day-to-day decisions are made by the parent in whose care the child is, according to the residential schedule.
Factors the court will consider Courts resolve custody and access applications on the basis of what is in the best interests of the child.
Among other factors, a court will consider
- A child’s physical well-being;
- A child’s emotional well-being and security;
- The applicant’s plan for the child’s education and maintenance;
- The child’s financial needs;
- The child’s religious and ethical upbringing;
- The parent’s understanding of the child’s needs;
- The child’s wishes (this factor increases in importance with the child’s age);
- The benefit of keeping siblings together; and
- The bonding between a child and his caregivers. The application of this test is fact driven and focused on the child’s needs rather than the parents’ rights.
A child should have as much contact with each parent as his or her best interests require. The failure of a parent to foster such contact is a consideration in any custody or access determination.
A parent’s conduct or misconduct is only relevant to custody or access if it affects the child or that parent’s ability to care appropriately for the child. Examples of such conduct include alcohol or drug abuse. In assessing parenting ability, a court shall consider violence or abuse against the parent’s spouse, the other parent, a household member, or any other child.
If a child is at risk in a parent’s care because that parent may be violent, suffers from alcohol or drug addiction, or has health problems impeding his or her ability to care for the child, access may be permitted only in a supervised setting. Supervised orders are rare and made only if in the child’s best interests. The parent seeking to impose supervision of access has the burden of proof that supervision is appropriate.
The children’s lawyer The OCL may assist the parties and the court in a litigated case.
The OCL may become involved in one of two ways:
- A court may order the appointment of the OCL under s. 89(3.1) of the Courts of Justice Act (CJA). If appointed, the OCL has the role of representing the child’s views and providing the court with some context for those views.
- Under s. 112 of the CJA, a court may also order that the OCL perform an investigation, report, and make recommendations to the court on the child’s needs. The OCL have in-house social workers to perform the investigation. The OCL retains the authority to decide whether to accept the appointment.
The appointment of the OCL is not automatic even if court ordered.
The OCL decides whether to become involved in a particular case after each parent has completed an intake questionnaire.
A court may order an assessment of the needs of the child and the ability and willingness of the parents to meet those needs.
The purpose of an assessment is for an expert with professional skill, usually a psychologist, psychiatrist, or social worker, to provide information to the court not otherwise available.
Parties also may consent to an assessment. Counsel may only release a client’s confidential information to any third party, including an expert witness, after obtaining express written instructions.
The assessor’s role is to provide expert evidence to assist the trial judge in his or her decision.