When parents separate, they have to decide on appropriate custody and access arrangements for the children.
Until these issues are resolved, both parents have equal legal rights to have custody of their children.
Legally, custody refers to decision-making responsibility. A parent with sole custody has the right to make decisions about the child’s upbringing without involving the other parent. Parents with joint custody make major decisions together.
Children often spend most of their time with one parent, whether that parent has sole or joint custody. The other parent, in these cases, will almost always have access to the children.
Courts generally believe that it is best for children to have as much contact as possible with both parents. Where there are concerns about the children’s safety or the access parent’s parenting skills, access may be supervised. It is only likely to be denied completely if the court believes there is a very serious risk of harm to the child.
Where there are concerns for the mother’s safety during access exchanges, these can be supervised either formally or informally.
The best interests of the child test
All decisions about custody and access are made using a test called “the best interests of the child.”
This test requires the court to consider a number of factors. These include:
- any history of abuse in the household
- the love and emotional ties between the child and the person claiming custody
- the length of time the child has lived in a stable environment
- any plans for the child’s care and upbringing, and
- the ability of each person applying for custody to act as a parent.
When leaving with the children
Abusive men often use custody and access as a way to try to maintain control over or intimidate their ex-partner. It is very important for a woman with children leaving an abusive relationship to move quickly to establish legal custody of her children to prevent the abuser from claiming she has abducted them or from simply taking the children and refusing to let her see them.
This is especially true for women whose ex-partners may be in a position to remove the children from Canada. While the Hague Convention offers some protection against international abductions of children, it does not apply in many parts of the world, and even where it does apply, getting a child back from another country is a time-consuming, expensive and complicated process.