Access:
Nov. 25, 2005
Q - What is child access?
A - Access is sometimes called visitation. Generally, it is the right of children
to visit and have contact with their parents after a separation or divorce.
Parents can reach a verbal or written agreement regarding access or the court
can make an access order.
A child who is living most of the time with one parent, will usually have
access to the other parent. Generally, children benefit from a relationship
with both parents and access will only be denied if a judge is satisfied that
it would not be in the best interests of the child.
There are several types of access:
Reasonable access: This provides for the parents to agree
on convenient, reasonable and appropriate times for a parent to share time with
the child. It allows the parents to make their own flexible arrangements. This
kind of arrangement works best when the parents have a positive relationship
and can work out matters for the child together.
Specified access: This type of access, set out in a court
order, separation agreement or other written agreement between the parents,
provides regular set times that a parent may have the child. For example, the
arrangement might be that the parent pick up the child on the first and third
Saturday of each month at 12 noon and return the child by 5 pm the next day.
Supervised access: This type of access, set out in a court
order, separation agreement or other written agreement between the parents,
provides that time spent by the parent with the child must be in the presence
of another adult. Usually, the adult will be named in the order or agreement.
This type of arrangement is made if the parents agree or the court believes
it is necessary to ensure the welfare of the child. Some areas of the province
offer a supervised access service.
Contact the court office in your area for more information, or in the Halifax
area, see: http://www.veithhouse.ns.ca/programs.htm.
Q - Who can apply for access?
A - Most often it is the parent without custody who applies for access but
others with a relationship with the child may also apply. Examples are grandparents,
other relatives, a step-parent, or a common law, gay or lesbian partner who
has cared for the child but who is not the child’s biological parent .
Individuals other than the child’s parents must first get leave (permission)
from the court to make the application. All parents have the same rights to
apply for custody and access, whether they were married to the child other parent,
living together or never lived together.
Usually children benefit from having contact with grandparents and other members
of the extended family. When parents separate or divorce, they may need to work
out arrangements to allow the children to continue this contact with both sides
of the family. Sometimes a parent may not maintain contact with the children
but grandparents, aunts and uncles may to want keep in contact.
Non-parents sometimes apply for custody or access if they do not believe the
children are being properly cared for, or if they are unhappy that they no longer
see the children, or do not see them as often as they would like. Judges are
reluctant to grant custody or access rights to non-parents as long as one of
the child’s parents is capable of caring for the child and is not unreasonably
keeping the children from their extended family members.
Q - How does the judge make a decision on who gets
access?
A - When a judge makes, changes or enforces an agreement or order for access,
he or she must be guided by what is in the child’s best interests. All
parties will have an opportunity to provide information on what they feel is
in the child’s best interest.
In some cases, if the parties cannot agree, a judge may order a Custody/Access
Assessment. A trained professional prepares an assessment of the parenting plan
or a parenting assessment of the individuals and makes a recommendation to the
court.
Parents will be expected to contribute to the cost of the assessment, based
on their income and number of dependents.
Q - What is interim access?
A - An interim access order is a temporary order or agreement. It lasts until
a judge makes a final decision on access or the parents enter into a permanent
agreement.
Q - When can access be denied?
A - Generally, the court will only deny access to a parent if access is not
in the child’s best interests and would put him or her at risk. Once there
is a written agreement or court order regarding access, it can only be changed
by further written agreement or a new court order.
One parent cannot deny the other parent access, where a written agreement or
court order is in place. However, there are times when a parent may be justified
in refusing access.
For example, a parent may be justified in refusing access if the parent exercising
access appears to have been drinking when he or she arrives to pick up the child,
or if he or she threatens to take the child out of the province, or is taking
the child to a place where he or she may be in danger.
A parent who feels that the other parent should be denied access on a permanent
basis, must apply to the court to change the access order or both parents must
agree to change the written agreement.
A parent cannot deny the other parent access because he or she is not paying
child or spousal support. Access, child and spousal support are separate issues,
and one cannot be used to bargain for the other.
If one parent does deny access, the other parent can go to the Supreme Court
(Family Division), in HRM or Cape Breton, or to the Family Court in other areas
of the province, and ask for the order to be enforced.
Q – If the other parent was abusive, does he
or she still have a right to access?
A – If the other parent abused the child, a judge may deny access or
order supervised access depending on the circumstances and the risk of further
abuse.
If the other parent abused you but not the children, the judge will try to
make an access order that is safe for you. For example, the judge might order
that the other parent have no contact with you, that a third person, such as
a relative or neighbour, supervise while your children go with the other parent,
or that the other parent remain in the car at the curb while you send the children
out. Sometimes this ends the abuse. If the abuse continues, you can ask the
court to make an order that the other parent have no access at all. It is harmful
to children to see a parent abused, even if the children are not abused themselves.
Q – Can parents be forced to visit with their
children?
A – No, but they might lose access rights as a result. Sometimes a parent
who has access will not visit his or her children. This is called "not
exercising access" and it can hurt your children, especially if they expect
to see the other parent at a certain time and he or she does not show up, or
cancels at the last minute. If this happens on a regular basis, you should explain
to the other parent how this behaviour affects the children.
Courts will sometimes order that a parent get counselling or take parenting
classes and you can ask for this in court if the other parent has a history
of not exercising access. If the parent still fails to exercise access, there
is little you can do except try to help your children deal with it. Counselling
may help the children to understand that it is not their fault.
Some parents who fail to exercise access will later claim that access was denied.
If you are concerned about this, you should keep a record of access requests
and visits so that you can prove that you did not deny access to the other parent.
Q - Where do I go to get a court order for access?
A - If you are in Halifax Regional Municipality or Cape Breton custody and
access matters are dealt with by the Nova Scotia Supreme Court (Family Division).
In other areas of the province, you go either to the Family Court or the Nova
Scotia Supreme Court.
The Nova Scotia Supreme Court (Family Division) has Court Officers (sometimes
referred to as Conciliators) who can help you identify what your options are.
The Family Division offers a number of services including mediation, assessment,
and parent education programs for parents who are dealing with issues such as
custody and access.
Family Court has case workers who can provide information on making an application
for a court order for custody and access. See the FAQs on Family Court for more
information or visit www.courts.ns.ca
Q – Can an agreement or order for access be changed?
A - Yes. Either parent can apply to have a written agreement or court order
for custody or access changed.
If both parents don’t agree with the change, the parent making the application
must show that there has been a change in circumstances for the child or one
of the parents significant enough to justify a change in the order or agreement.
The parent must also show that the changes are in the best interests of the
child.
As the child grow older, parents may need to review the arrangements for access.
Children outgrow access arrangements the same way they outgrow clothes and toys.
An arrangement that works for a toddler may not work for the same child in elementary
school. Access that worked well for a child in junior high may not suit a teenager.
Infants who are still breastfeeding may only be able to be away from their
mothers for a few hours at a time. Some toddlers who have a strong relationship
with their other parent may be able to stay with that parent overnight; for
other toddlers, it may be too hard for them to be away from their home for that
long. School age children often enjoy spending longer periods with the other
parent.
Teenagers may want to decide for themselves how often they see each parent.
Generally speaking, younger children need shorter, more frequent periods of
access, while older children and teens can do well with longer access periods
and more time between access periods. Younger children tend to need more routine
(that is, to know that they spend Wednesdays and every other weekend with the
other parent), while older children may prefer more flexibility.
Q - Where can I get more information?
A - Family Courts are listed in the blue pages in the back of the phone book
under 'Courts.' Here are phone numbers
for the main offices:
Amherst - 902.667.2256
Kentville - 902.679.6075
Antigonish - 902.863.7312
Truro - 902.893.5840
Bridgewater - 902.543.4679
Yarmouth - 902.742.0550
New Glasgow - 902.755.6520
Supreme Court (Family Division):
Sydney - 902.563.2200
Port Hawkesbury - 902.625.4012
Halifax - 902.424.3990
Mediation information:
Family Mediation Canada
http://www.fmc.ca/ Nova Scotia Department of Justice, FLIC
Alternatives to court: http://www.gov.ns.ca/just/FLIC/alternatives.asp Mediation and Family Counselling services are listed in the Yellow Pages of
the phone book under 'Marriage, Family and Individual Counsellors.'
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