Custody:
Nov. 25, 2005
Q - What is Custody?
A – Custody refers to an arrangement for the care and control of a child
by his or her parents. This includes the right to direct the child's activities
and make decisions regarding the child's upbringing. When parents separate or divorce, they may agree on the arrangements for custody
of the children. They may set out the agreement in a separation agreement. Generally
such agreements are not enforceable unless each parent obtained separate legal
advice before signing the agreement. You should consult a lawyer before you
sign a custody/access agreement. If parents cannot agree, either may apply to court to have a judge decide on
custody and access. The judge’s decision will be based on the best interests
of the child.
Q - What is joint custody?
A - Joint custody is an arrangement where both parents continue to share in
major decisions that affect the child. Usually, the child lives with one parent
for the majority of the time (especially during the school year), and that parent
makes day-to-day decisions for the child. The other parent will usually have
access, that is, a right to visit with the child and to share in major decisions
that affect the child.
Q - What is sole custody?
A - Sole custody means that one parent is responsible for the care of the child
and decisions affecting the child and usually the child lives with that parent.
The other parent will usually have access to the child and may ask to be consulted
before a major decision affecting the child is made. Where both parents maintain
their relationship with the child, the courts encourage consultation and may
order it.
Q - What are shared and split custody?
A - “Shared custody” and “split custody” are terms
used in the Federal Child Support Guidelines. Custody arrangements make a difference
in how the Federal Child Support Guidelines tables are used. Briefly, under
the Federal Child Support Guidelines:
- Sole custody means the children live with one parent at least 60% of the
time.
- Shared custody means the children live at least 40% of the time with each
parent during the course of the year. This type of arrangement may affect
the amount of child support.
- Spilt Custody means each parent has custody of one or more of the children.
This type of arrangement may also affect the amount of child support.
For more information see the FAQs on child support.
Q - Who can have custody?
A – In Nova Scotia, regardless of whether they are married, the father
and mother of a child are joint legal guardians of the child unless a court
orders otherwise. The mother and father can sign a written agreement about custody
or ask a court to make an order.
While most often it is parents who seek custody, others may also apply for
custody. 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. They must first get leave (permission) from the court to
make the application for custody.
A child protection agency such as the Children’s Aid Society may take
a child into care if the child is in need of protective services. Within five
days of taking the child into care they must either return the child to the
parent or apply to a court for custody of the child. A judge may order that
the child to be returned to the parents or that the child remain in the care
of the agency until the judge makes a final decision on who should look after
the child. Click here for more information about the child protection process.
Q - Who decides who gets custody?
A – The parents can have a verbal or written agreement setting out who
shall have custody and the arrangements for access. To avoid future disputes
it is best to have a written agreement. The agreement can have a clause allowing
it to be registered with the Supreme Court (Family Division) in Halifax Regional
Municipality and Cape Breton or in Family Court in other areas of the province.
Before signing the agreement each parent should talk with a lawyer. They should
not use the same lawyer.
If the parents cannot come to an agreement, either can apply to court for
a judge to decide on custody. In making an order for custody, the judge will
decide what is best for the child.
Q - How does the judge make a decision on who gets
custody?
A – Whenever a judge is making, changing or enforcing a custody order
or agreement 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 determining the best interests of the child, the judge will look for the
living arrangement that is the least disruptive and most supportive and protective
for the child. Other factors the judge considers are the:
- physical environment where the child will be raised
- parent as a disciplinarian and as a role model,
- wishes of the child (if the child is old enough),
- religious and spiritual guidance for the child,
- time and availability of the parent for the child,
- cultural development of the child,
- physical and character development of the child and the emotional support
to assist in a child developing self-esteem and confidence,
- financial contribution to the welfare of the child,
- support of extended family,
- willingness of a parent to facilitate contact with the other parent, and
- interim and long range plan for the welfare of the child.
In some cases, if the parties cannot agree on custody and access, 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 custody?
A - Interim means a temporary order or agreement. Parents may reach an interim
agreement regarding custody and access, or the court may make an interim order
for custody and access. The interim order stays in place until further written
agreement between the parents or a new order from the court. An interim order
is usually made until a final hearing on custody and access can be held.
Q - What happens if a parent with access refuses to
return the child after a visit?
A - If a child is removed from a parent’s care without that parent’s
consent, there are a number of steps the parent can take to have the child returned
to his or her care. Which steps are appropriate will depend on a number of factors,
including whether the parent has an order for sole custody or joint custody,
who took the child, and the circumstances of each case.
In some circumstances, it may be appropriate to complain to the police and
ask to have the person who took the child charged with abduction. The parent
must be able to show that the child was removed without consent, and that he
or she was the person lawfully caring for the child. It is important to contact
the police if the child may be in danger or if a person who took the child may
try to leave the province or country.
A parent with a custody order may go back to court and ask for the order to
be enforced.
If a child protection agency takes the child, they must either return the child
to the parent or apply to the court for a hearing within five working days. Click here for information about the child protection process.
Q - Can a child choose which parent he/she will live
with?
A - No. Where a child lives is a decision made by either the parents or the
court. The child’s preference may however be taken into consideration.
The older the child, the more weight will be given to his or her wishes.
Q – Where do I go to get a court order for custody?
A – If you live in Halifax Regional Municipality or Cape Breton you go
to the Nova Scotia Supreme Court (Family Division). In other areas of the province,
you take custody and access issues to either the Family Court (usually if you
are not getting a divorce) or the Nova Scotia Supreme Court (usually if you
are getting a divorce).
The Nova Scotia Supreme Court (Family Division) has Court Officers (sometimes
referred to as Conciliators) who can help you identify your options. 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. The FAQs on Family Court, gives more
information about Family Court services.
Q - Can a court order for custody be changed?
A - Yes. Either parent can apply to have a written agreement or court order
for custody or access changed.
The parent making the application must show that there has been a change in
circumstances one of one or both parents, or the child, significant enough to
justify a change in the order or agreement. The parent must also show that the
change is in the best interests of the child.
Q - Can I take my child out of the province?
A – If you have custody you may take the child out of province temporarily,
for example on vacation within Canada. You may need a letter of permission for
international travel. If you have access, you may need the permission of the
parent with custody. It is best to get the permission in writing. A parent with
custody who wants to permanently take the child to live somewhere else may need
to get the consent of the other parent or the court depending on the agreement
or court order.
One of the more common reasons why a parent may seek a change in custody is
if the custodial parent is planning to move to a different city or town ¬far
enough away that the move will significantly affect the other parent's access.
Often the parent with custody wants to move to take up a new job, or to be with
a new spouse, or to be closer to extended family that live elsewhere.
If the non-custodial parent does not agree with the move, he or she can apply
to the court to prevent the children from moving. Parents may move wherever
and whenever they want, but the court can order that the children remain where
they are, if that is what is in their best interests. The court can do this
either by changing custody to the other parent or ordering that custody will
change only if the custodial parent chooses to move.
Sometimes the parent who does not have custody will ask for a condition in
the initial custody agreement or order that prevents the other parent from moving
or requires that notice be given before a move. In this way, the non-custodial
parent will have time to apply to the court to prevent the move if she or he
does not agree with it.
If you have custody of your children and you want to move away, you should
inform the other parent in writing before you move. Keep a copy of the letter.
Give the other parent as much advance notice as possible. If the other parent
agrees with the move, ask him or her to sign a letter consenting to the move.
If the other parent refuses to sign the letter or does not consent to the move,
you should see a lawyer as soon as possible.
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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