Custody and Access Orders

Legal Orders Close Gaps in Parenting and Protect Children’s Rights

In most custody instances, parents have a legal right to spend quality time nurturing their child.

A Parent’s Right is a Child’s Right

After a separation or divorce where children are involved, custody and visitation typically play an important role in legal proceedings. There are times, however, when matters related to children are not addressed in a court until one parent’s rights or access to the child have been violated.

A lack of formal custody arrangement is especially true in cases of children born out of wedlock or instances of an extended separation before a legal divorce. In both cases, parents may be forced to resort to a custody or access order to ensure continued legal and physical contact with a child.

Not every instance necessitating a court order relates to separated parents and natural children. When an adult has acted on behalf of a parent to a child, they sometimes need an order to legitimize their necessary and continuing access and authority over the child.

In most cases, Canada’s family laws provide for legal methods that examine a child’s best interests for access requests. A parent’s rights are important, but a child’s rights are the paramount concern of the courts.

Parents or Non-Parents May be Entitled to Access

In most cases of divorced or separated parents, child custody will have been determined and established in a family court during divorce proceedings. Parents typically negotiate and agree to the type of custody and visitation prior to a court issuing a final order.

In some cases, a parent or other adult non-parent may need to seek a custody or access order outside of divorce, or before or after a custody determination has been made. A court order is sometimes necessary when:

• parents have separated and live apart, and the child lives with only one parent who is non-cooperative; or
• a non-married couple has not negotiated or agreed to custody or visitation arrangements and one parent is being excluded; or
• a non-parent adult is caring for a child whose parents are deceased, missing, unable to adequately provide for the child, or otherwise unavailable to fulfill their parental duties.

In each of these cases, a court will entertain applications for custody or access that it determines to be in the child’s best interests. A child’s best interests include her health, safety, comfort, and other contributions that support emotional, mental, and physical development. In addition to basics like food and housing, a court will look to a child’s existing relationships, attachments, and similar less tangible factors.

A legal custody or access order will allow the responsible adult custodian to fulfill legal and non-legal parental duties. Court orders can be used to show proper authority when registering children for school, obtaining passports or identification, and for critical issues like medical care.

Applying for Custody or Access

In Ontario and other provinces and territories, requesting custody of or access to a child requires application to a family court with jurisdiction in the child’s residence. Most provincial and territorial courts have standard forms available to make the process easier, though speaking with an attorney is the best way to ensure a quick and hassle-free legal process.

A qualified family law attorney can assist with necessary forms, witness statements, and possible interviews to ensure that the child’s rights — as well as the adult’s — are respected and protected. Additionally, an experienced lawyer familiar with the local courts, rules of procedure, and adjunct agencies that may be consulted in a custody or access case is a valuable ally.

When a child’s interests, comfort, and safety are at stake, working closely with a knowledgeable family law attorney may expedite the process of doing what is best for a child.

Family Attorneys Make a Difference

Rely on trusted advice and experience to ensure that a child’s welfare remains paramount in every instance. Contact Fine & Associates for a free family law consultation.