Custody and Access (Parenting)

 

What is Custody?

  • Custody is a legal term which refers to decision making and responsibility for a child. A person who has custody of a child has the responsibility for making important decisions about a child’s life, such as decisions about education, health care and religion.
  • When parents decide to separate and/or divorce, a decision must be made about who the child/ren will live with.
  • No matter what the issues are, meeting the needs of children comes first.

Do we have to go to Court to Decide Custody?

  • Not always. Custody can be decided between the parents or guardians of the child/ren if a custody and access arrangement can be agreed upon.
  • A custody agreement cannot be made before a relationship breaks down.
  • It is a very good idea to put any custody arrangement into writing.
  • If parents cannot reach an agreement but wish to remain out of Court, they may want to consider contacting Family Justice Services.

Family Justice Services (FJS)

  • FJS can assist in trying to work out custody and access without having to go through a court hearing.
  • Parents can apply directly to FJS for services or if they apply to court for custody, the application will be forwarded to FJS.
  • Family Justice Services will assess your needs and offer parent information programs, counselling (when deemed appropriate), and dispute resolution options/mediation, free of charge. Attendance at the Parent Information Sessions is mandatory and parties are expected to take part in mediation.
  • FJS does not provide legal advice and you should still obtain legal advice even if you can reach an agreement.
  • If parents are still unable to come to a decision, the issue may have to be resolved in Court.

Which Court Will Decide My Custody Application?

If you live in a “judicial area” where the Supreme Court of Newfoundland and Labrador Family Division operates exclusively (East Coast and West Coast), you must to apply to that Court for custody. See “judicial areas” section in “About Family Law Courts in NL” section of this website to see geographical descriptions.

If you live in an “expanded service area”, you have the option of filing the application with the Supreme Court of Newfoundland and Labrador Family Division or with the Provincial Court since the two Courts have concurrent jurisdiction in these communities. See “expanded service area” section in “About Family Law Courts in NL” section of this website to see geographical descriptions.

In all other areas of the Province (including Labrador), an application for custody may be filed in either the Provincial Court or the Supreme Court of Newfoundland and Labrador General Division.

Only the Supreme Court General or Family Division can deal with applications to vary custody orders that it issues as part of, or after, a divorce.

While the Provincial Court can change its own orders, it cannot vary a custody order which was issued in the Supreme Court.

It is strongly recommended to speak with a lawyer if you are uncertain which Court should be handling your case. Filing documents in the wrong Court can lead to significant delays.

Who Can Apply for Custody?

  • Parents are not the only ones who can apply for custody of child/ren. Others who can apply for custody include:
  • Grandparents;
  • A person who has shown a settled intention to act as a parent towards the child;
  • A person who was responsible for the actual care and upbringing of the child immediately prior to the custody application being made
  • If a person has questions about making application to the Court for custody, he/she should consult with a lawyer.

What is meant by ‘the best interests of the child’?

You often hear the phrase ‘best interests of the child’ in relation to custody and access.

When custody is decided in court, the judge will consider which arrangement is in the child’s best interest. Some considerations might include:

  • Any special needs the child may have;
  • The health and emotional well-being of the child’
  • How well a parent can look after a child’
  • What the child wants (if the judge feels the child is old enough to express a view)

Note: This list is not exhaustive. The factors considered will depend on the facts of each case.

Types of Custody Orders

The following are some terms to describe different custody arrangements in Newfoundland and Labrador:

Interim Order

  • Temporary order made once custody proceedings have started, before the final order is given
  • Courts will usually make interim custody orders while an action in divorce is underway, paying attention to the child’s immediate best interests. Courts favour stability, so an interim order may favour the party with custody at the time of the relationship breakdown.

Sole Custody Order

  • In a sole custody arrangement the child usually lives primarily with one parent. That parent has the sole responsibility to make major decisions for the child.
  • It does not mean the other parent is uninvolved because the other parent will usually have visitation (ie. access) rights.
     

Joint Custody Order

  • Joint custody is a parenting arrangement where parents make major decisions about the children together.
  • It does not necessarily mean that the child lives with both parents an equal amount of time. The child may live mostly with one parent, or they may spend equal amounts of time with both parents.
  • A parenting arrangement is made either by both parents together, or the Court will decide how much time is spent with each parent.

I have custody and want to move away. Do I need to consult with the other parent?

Normally, the other parent must agree with the move before the parent with custody can move away with a child. It is strongly recommended that this permission be provided in writing. This may already be addressed in the custody order or custody agreement, if these documents are in place.

If the parents cannot agree, the parent with custody can apply to Court for permission to move with the child/ren, or the parent without custody can apply for non-removal.

Some things the judge may consider include:

  • The best interests of the child;
  • The desirability of maximizing contact;
  • The child/ren’s views;
  • The disruption to the child/ren’s life
  • A parent should always consult with a lawyer before moving away to discuss his/her legal rights and responsibilities.

What is Access?

Access, in relation to parents, refers to the right of non-custodial parents to visit and spend time with a child.

Access also usually includes the right to ask questions about a child and to be given information about health, welfare and education.

When a child lives primarily with one parent, the other parent usually has access rights including overnight access where appropriate.

The parents might agree on an access arrangement, or application can be made to court to obtain an access order. The number and length of visits will vary with each case.

Who can have Access?

Access is not just for parents. Grandparents and other relatives can also have access.

Normally, it is important to keep relationships with grandparents, relatives and others where it is in the best interests of the child.

The basis for and time permitted for access to non-parents is usually different.

What Does the Court Consider When Making Access Orders?

The “best interests of the child” is the chief concern of the Court when deciding access.

Judges will not usually limit access unless they are convinced the other parent might pose a risk to the well-being of the child.

If the judge is concerned, he/she may limit access or order a friend or family member or a third party to supervise a parent’s access.

Types of Access Arrangements

There are several types of access arrangements in Newfoundland and Labrador.

  • Reasonable Access on Reasonable Notice
    This type of access arrangement means that the parent who does not have custody can arrange to set up times with the custodial parent to see the child.
    This is a flexible arrangement. It requires both parents to cooperate with one another to see that the child spends time with both parents when it is best for the family’s schedule.
  • Specified Access
    This type of access provides certain times that a parent may have the child in his or her care.
  • Supervised Access
    This type of access provides that time spent by the parent with the child must be in the presence of another adult. Often the supervising adult will be named in the order or agreement.