Custody & Access

Separating can be hard and emotionally draining, however this is just intensified when children are involved. Most people are unaware of the difference between custody and access. A family law lawyer can help guide you through all the issues surrounding your children, including custody, access, and travel and mobility. By understanding what the law is and how courts deal with children and separation, it makes it easier to come up with solutions and schedules that work best for you and your new family.

What is the Difference between Custody & Access?

Many people are often confused as to the difference between custody and access. The common misconception is that parents think that they need to have custody or sole custody in order to have their child live with them.

Custody has nothing to do with parenting time or which parent the child lives with. Custody refers to a parents right to make major decisions regarding the child, including health, education, and religion.

Access on the other hand is about the actual time spent between the parent and the child. It entails the parenting schedule, and the exchanges of the child between the parents.

Primary residence refers to where the child is living the majority of the time. Depending on the parenting schedule between the parties, a child may live between both parents’ homes evenly. Sometimes this is referred to as shared custody or joint physical custody, which occurs when a child lives at least 40% of the time with one parent, and then the rest of the time with the other parent. However, if a person has sole custody, they are likely also going to have their child living with them and their house be he primary residence for the child.

Courts and legislators have started to acknowledge the confusion with using terms such as custody, access and primary residence, and have started to consider changing terms in family law legislation to better reflect the situations in which these terms are trying to define.

What are the different types of Custody?

There are three different types of Custody:

  1. Joint Custody: when both parents make decisions regarding the child together.
  2. Sole Custody: when only one of the parents makes decisions for the child; they do not have to ask the other parent for permission or have to agree to what the other parent wants.
  3. Split Custody: when the parents split the decision-making categories regarding the child, such as one parent making decisions regarding education, while the other makes decisions regarding health.

How do we share time with our Child after Separation?

There is a misconception that there are only a set number of parenting schedules available to use to determine which parent will have their child when. Parents can come up with any schedule in regards to splitting time with their child. Each person, child and family is different, and will have different factors to take into consideration when making a schedule. These factors can include things such as each parent’s work schedule, what extra-curriculars the child attends, where their school is located, the distance between where the parents live, and the needs of the child. It is important to note however, that an access or parenting schedule needs to work well for the child, not just the parents. A Court is likely not going to find it beneficial for a child to be going back and forth between parents on a daily basis, if for example, the parents live a great distance apart. However, this schedule may make more sense if parents live in the same city or very close to one another.