In the practice of family law, the terms custody and access go hand-in-hand. However, they are often confused with one another and used interchangeably by clients. The purpose of this article is to help our clients distinguish the difference between the two while also obtaining a better understand of how they relate to one another in family law proceedings.
Custody means you have the right to make major decision with respect to your children, including decisions about medical issues, education, religion and other important decisions affecting the welfare of your children. Parents who have joint custody share the right to make these important decisions regarding their children. The children may split their time equally between both parents or they may spend more time with one over the other. But ultimately joint custody means both parents remain involved in the decision making process of their children's live. Such an arrangement requires cooperation between the parents in order for them to communicate and work together for the sake of the children.
Access, on the other hand, pertains to the actual parenting time that a parent can spend with the children. Often access arrangements are written out in detailed parenting plans, separation agreements, or court orders. But it is also not uncommon for access arrangements to be more open-ended. For parties that are able to communicate and cooperate, access can be decided amongst them in a more flexible manner. However, it is important to realize that not having an access arrangement in writing means it is harder to enforce before the court.
Access agreements between parents may be refused by the court if there is a serious fear that the parent seeking access will harm the child, or if there is a fear the parent seeking access will not return the child. However, there normally has to be substantial evidence to show that there is a very real and reasonable chance that the child could be harmed if access moves forward. Therefore, when there is a fear of safety for the child, the court may order that access visits with the child be supervised. Supervision can mean a mutually agreeable family friend or relative, or it can be a paid professional such as a social worker. Throughout Ontario there are government funded Supervised Access Centres which are staffed by trained professionals to assist in facilitating access.
In conclusion, custody generally means you have the right to make major decisions regarding the children. Access is an arrangement which sets out when and how often a parent may see the children. Although two sides of a similar coin, the distinction between the two is important.
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