Custody and Access

Legally, children under 18 generally cannot make important decisions on their own, such as education, residency, and medical care. Instead, major decisions are made by their custodian(s). In the absence of a court order, the custodians of a child will be the parents.

Obviously, children cannot be divided like properties upon divorce or separation. The children must live with one parent or the other, and major decisions have to be made on behalf of the children from time to time. In many cases, the court will award “custody” to one parent, making that parent responsible for making decisions on behalf of the children.

Most parents are emotionally attached to their children; in a bitterly contested divorce, both spouses are afraid that the other will take the children away and never be seen again, or that the spouse who has custody will intentionally make bad decisions for the children. In my experience, 8 out of 10 clients who come to me for family law cases are contemplating the scenario above and insist that they must have sole custody of the children.

However, the scenario they have been contemplating is (fortunately) usually far from reality. In most cases, the non-custodial parent will have “access” to the children and is entitled to be informed of the children’s well-being. The non-custodial parent, although not legally entitled to make the decisions for the children, generally has input into major decisions regarding the children’s education, residency, and religious upbringing.

The law dictates that the best interests of the children must prevail when awarding custody. It is now well-recognized that in the absence of compelling reasons, the children should have as much contact with both parents as possible. Only in exceptional circumstances would the non-custodial parent’s right to access be terminated.

I generally advise my clients that meaningful, regular access to the children can be more important than custody. Rather than spending tens of thousands of dollars on a custody battle, the parties may be better off to work out a schedule allowing maximum contact between the children and both parents – and spend the cash somewhere else.

Caution and disclaimer: The above article is provided solely for educational purposes. This is not legal advice. Readers must seek independent legal advice from a properly licensed practitioner.

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