Child access or visitation rights occur when the children who primarily live with one parent visit the other parent. Even if a parent does not have custody of their children, that parent can have access visits on a regular timetable to ensure their relationship with the child is maintained. In addition to visits, access includes the right to inquire about & obtain information about your children’s health, welfare, & education from third parties like doctors and schools. A parent’s right to access is legislated by the Children’s Law Reform Act, is not suspended upon separation of the parties (as custody can be), but is subject to the best interests of the children. A common access schedule is alternate weekends from Friday evenings to Sunday evenings as well as one or two weeknights per week (or sometimes overnight visits) with the parent not having primary care and control of the children. In addition to regular access, holidays are often split as equally as possible, although summer access visits normally range from two to four weeks, and determination of an access routine is subject to the children’s and parents’ schedules.
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How is Access Decided?
Many parents are able to resolve access issues between themselves. If the issue of access is left for a judge to decide, the judge will decide the issue based on what is in the best interests of the children. Although the best interests of the child test has been criticized as being too vague, it is still employed as a primary guideline in determining access issues.
Like custody, when access issues are to be decided by a judge, the judge will focus on what’s in the best interests of the children. Section 24(2) of the Children’s Law Reform Act specifically legislates that the court shall consider all of the children’s needs and circumstances including the following:
- the love, affection and emotional ties between the child and,
- each person entitled to or claiming custody of or access to the child,
- other members of the child’s family who reside with the child, and
- persons involved in the child’s care and upbringing;
- the child’s views and preferences, if they can be reasonably ascertained;
- the length of time the child has lived in a stable home environment;
- the ability and willingness of each person applying for custody of the child to provide the child with guidance and
- education, the necessaries of life and any special needs of the child;
- any plans proposed for the child’s care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and
- the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Although a parent who does not receive custody usually receives access, no person has an absolute right to access. Most judges and parents view access as a joint right of a parent and a child and accept that there should be regular and frequent access unless a parent has forfeited such right by misconduct or such access poses a risk to the child. The courts usually apply a policy promoting maximum contact between a child and an access parent, where practical, and an access arrangement is usually structured to take into account both parents’ and the children’s schedules.
Factors in Deciding Access
In assessing the children’s best interests, the courts will look at many factors before making a final determination. The weight given to any factor will vary in each case, but courts tend to focus on the status quo. Some of the factors looked at are the following:
- Age of the Child. Children’s needs and ability to deal with extended access and travel change as children age.
- Parent’s Conduct and Lifestyle. This is usually only relevant insofar as it affects a person’s ability to meet a child’s needs while they are together.
- Parent’s Health. This may become relevant if it affects a person’s ability to meet a child’s needs.
- Status Quo. Courts are reluctant to change ongoing access arrangements that seem to be in a child’s best interests just because one of the parents changes his or her mind.
- Welfare of the Child. It is generally in the best interests of the child to develop and maintain a relationship with both parents. The child’s welfare doesn’t necessarily match that of the parent. It is typically in the bests interests of the child to continue an established access routine unless such access no longer meets a child’s interests.
- Wishes of the Child. The Court may consider the child’s preferences when they can be reasonably determined. In assessing the importance of the child’s wishes, the court considers issues such as how firm the wishes are, how mature the child is, and whether a parent has influenced the wishes. As a general rule, the wishes of a child under 10 years old will not be given much consideration.
- Wishes of the Custodial Parent. The custodial parent’s wishes will be considered, but they will usually not be followed if they are not in the best interests of the child.
Common Access Problems
In attempting to negotiate an agreement about access, there are many details to address, including the following:
- What time does access start, and who is responsible for dropping off the kids?
- What time does access finish, and who is responsible for picking up the kids?
- How many days per week/month will there be access?
- Who can accompany the other parent when they pick-up or drop-off the kids?
- Where will access be exercised?
- Who will be present during access visits?
- What telephone contact will the custodial parent have during access visits?
- What if a parent wants to increase or decrease the access time?
- If access time is missed, will there be make-up time? How will it be decided?
After an access routine has been established, disagreements or complaints can arise because you still have to deal with a spouse or ex-spouse from whom you have separated and/or divorced. Each parent can have complaints about access visits.
Common complaints of an access parent are:
- the children aren’t ready to go at the pick-up times
- the children don’t have enough or the right clothes for access
- the custodial parent independently scheduled a children’s activity during access time
- the custodial parent withholds access without prior reasonable notice
- the custodial parent interferes with access by calling frequently
- the custodial parent doesn’t arrange make-up access times
Common complaints of a custodial parent are:
- the access parent is late picking up or returning the kids
- the access parent doesn’t show up for scheduled access visits
- the children appear uncared for when returning for access visits (e.g. dirty diaper, dirty clothes, complaining they’re hungry, etc.)
- the children act out against the custodial parent when returning from access visits
- the access parent talks to the kids about court proceedings between the spouses