CUSTODY & ACCESS
Batterers are twice as likely to apply for custody and equally likely to convince the court of the merits of their application as non-violent fathers (Bowermaster & Johnson, 1998, Zorza 1995)
ACCESS
The right of the parent who doesn’t have custody to visit the child
CUSTODY
One parent’s legal right to live with a child and to have care and control over that child
When parents live together they share custody
GUARDIANSHIP
· Parent’s right to make longer term decisions about matters such as the child’s education, religion and medical care
· A child does not have to live with the person who has guardianship
· If guardianship is not mentioned the person the child lives with has sole guardianship
Following combinations are available
• Joint Custody & Joint Guardianship
• Sole Custody & Joint guardianship and
• Sole Custody & Sole Guardianship
IMPORTANT
• Judges do not like to move children so try to keep the children with you
• Apply for Interim Custody as soon as possible as it will make it easier to obtain final custody
Note: The most important thing is to document everything. The number of times your ex is late picking up the children, late to drop them off, doesn’t show up ect.
CUSTODY & ACCESS
UNDER THE DIVORCE ACT
Sec. 16 (8)
“In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child”
Sec. 16 (9)
“…the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child”
Sec. 16 (10) (Friendly Parent Rule)
“…child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”
FAMILY RELATIONS ACT (BC)
SECTION 24 (1)
“When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs and circumstances”
BEST INTEREST FACTORS
“(a)the health and emotional well being of the child including any special needs for care and treatment;
(b)if appropriate, the view of the child;
(c)the love, affection and similar ties that exist between the child and other persons:
(d)education and training for the child;
(e)the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
SECTION 24 (1.1)
The references to “other persons” in subsection (1)(c) and to “each person” in subsection (1)(e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child
SECTION 24 (1.2)
If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.
SECTION 24 (1.3)
If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.
SECTION 24 (1.4)
If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2)”
IN OTHER WORDS
• The definition of “best interest” up to the judge
• The law does not presently take into account domestic abuse as a factor
• The witnessing of domestic violence is not a factor
CUSTODY
• SOLE CUSTODY-child spends less than 40% of its time with other parent
• JOINT CUSTODY-Child spends at least 40% of its time with each
• SPLIT CUSTODY-Each parent has custody of one or more child
ACCESS CAN BE:
• Generous
• Liberal
• Reasonable
• Specified-dates and times decided on before hand
• Supervised or
• Conditional ie cannot smoke in presence of children
SUPERVISED ACCESS
• A third party must be present when ex sees child
• Unusual to be ordered
• Court does not usually on its own appoint a supervisor
INTERIM CUSTODY
(Sometimes called Interlocutory)
• Awarded before a decision is made on final custody
• Can be given under Divorce Act or Family Relations Act
• Petition for Divorce must be filed before Interim Orders can be granted
THINGS TO CONSIDER
• Is your ex generally responsible?
• Will your children be safe and well treated?
• Violence against you is not considered
• How much time does it take your kids to go back and forth?
• What is least disruptive schedule for them?
• In what circumstances would you deny access-i.e. if the child is sick or upset?
• Be as specific as possible about times and dates for visits so there is no room for argument.
• Keep a journal or record of ex’s access: dates, times, problems etc.
What will happen when your children are older and are:
• In school?
• In extra curricular activities?
• Able to travel alone?
What happens if:
• You get into a new relationship?
• You get a new job?
• Your ex gets a new partner?
• There are grandparents?
• There is extended family?
INTERIM CUSTODY
• In Family Relations Act under Section 9 (Interim Orders) or 35 (Jurisdiction to make custody or access orders) after a hearing
HOW TO APPLY FOR AN ORDER
• Can be applied for in Supreme Court or Provincial (Family) Court
• Can be applied for under the Divorce Act (after divorce application has been filed or Family Relations Act
IF YOU ARE MARRIED
• Interim order under the Divorce Act or
• Final order under Divorce Act
• Interim order under Family Relations Act (FRA)Sec. 9 or
• Order under FRA Section 35 after hearing
IF YOU ARE NOT MARRIED
• Interim order under Family relations Act-Section 9 or
• Final order under Family Relations Act- Section 35 after hearing
WHAT SHOULD I TELL THE COURT
• Current pattern of care
• Whether you have a stable home life and are not planning to change
• A plan for the future of the child
• How the violence affects the child
SECTION 15
Section 15 Family Relations Act (BC)
(1)In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who
• Has had no previous connection with the parties to the proceeding or to whom each party consents and
• is a family counselor, social worker or other person approved by the court for the purpose.
(2)A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.
(3) A person must not report to a court the result of an investigation under subsection (1) unless, at least 30 days before the report is to be given to the court, the person serves a copy of the report on every party to the proceeding
WHAT DOES IT MEAN
It is a report requested by the Court which recommends:
• Who should have the day to day control and care of child
• Who should have guardianship of the child
• What access the non-custodial parent should have
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