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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 02-10-2010, 12:39 PM
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Default Custody versus Access

I find in a lot of the posts people seem to confuse these two items - so I thought I would clarify to ensure I am not mistaken.

Background:

Separated without a formal agreement, sold the family home, my two children reside with me FT and we have open access - where a routine of access for about 2-3 hours every second Sunday seems to be routine. This access does not change (ie. no 'want them over for dinner etc) and only stayed overnight once (at her place).

It is about 6-7 months between overnights - where she will take them to her mothers for a visit. Both boys - one 14 and the other 9.

My girlfriend lives with us, but there is some tension with my oldest around that (having someone else in the home etc) -another thread speaks to that. so I do almost all parenting - school lunches, activities, homework, parent-teacher, pay for everything etc. Aside from lunches, this was the norm when married to my ex as well. I did all the above plus equal share of household duties and all exterior work, car cleaning etc, so there has never been the mother is the primary care-giver. I work FT she would not work - wanted to focus on self-improvement!

I have a case conference and asked for sole custody as part of that -some family members know about that request, and say it would be devastating if she couldn't see the kids - I said I still want her to have access (and actually want her to commit to a better routine - last time we spoke about that she said she wouldn't commit to something that doesn't suit her.

My approach at Case Conference is let's agree on Access - commit to a routine, if you can't do that then I feel I should have sole custody? Is this wrong of me? And does she have to be proven to be unfit, versus the fact I have defacto custody already? Even if I have sole custody, I want the children to see her - so by default I should just agree to joint custody?

I know the outcome should be what is in the best interests of the kids, but also don't know if she should have a say in things (examples below) if she is also not taking on some responsibility.

She is the applicant in the divorce and lists support as her primary concern, not access or custody - normally this would be the other way around?

The other issue with custody is I will occasionally get the old phone call from her demanding that I do something with respect to the care of the kids - i.e. use a medical treatment not covered by my benefits (osteopath not chiropractic, which is covered), 'issues' relating to not caring for the kids - she called one cold morning to tell me that it was an issue she saw our eldest without hat and gloves - I explained he had them but would not wear them (in his backpack) - when he leaves the house they are on - she yelled that it is an issue etc? Then she doesn't see them for 3 weeks?

My understanding of Custody: The parent has a right and involvement in decisions around the children.

My understanding of Access: The parent is able to visit and be with the children.


Does sole custody negate Access, or is the issue the fact that I could then have too much power, i.e. do parental alienation or something else not appropriate, so the courts take the middle road (unless one parent is proven unfit?)

Any thoughts would be appreciated?
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Old 02-10-2010, 01:05 PM
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Your understanding is correct.

You could offer joint custody, but I doubt that she would win it without your consent, since she has shown that she doesn't want to spend any actual time with them. Parenting is TIME - spend TIME with your kids. Sole custody makes most sense to me here. But ideally (for the kids) you will be able to work out an access schedule where she has more time with them.

That's just my gut-feel opinion...
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Old 02-10-2010, 01:19 PM
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I realized I left out Joint Custody. Here is a good summary for me: (answering my own question, but thanks for the response above...other opinions appreciated as well):

Sole custody means that one person is in charge of making the major decisions for the child. (For example which school does he/she attend, in which religion is he/she to be raised, and what medical care does he/she receive?)

Joint custody – means the parents have equal say in those major decisions.

Shared custody means the same as joint custody and the children
share the time with each parent on at least a 60/40 basis.

She has asked for Shared Custody in her application, even though she is also acknowledging the children will reside with me.
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Old 02-10-2010, 06:52 PM
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You're basically correct, I would just add that it is possible to have Joint Custody/Shared Access or Sole Custody/Shared Access. It is possible to have Joint Custody but one parent as primary residence (over 60%). Some of these combinations are maybe less likely because why have sole custody but shared access?

The reason would be if it was simply impossible for the parents to agree on things like medical issues and education, but there was no reason not to have equally shared time.

In your case, the mother has not involved herself in school, meeting teachers, etc, and has been incorrigable over medical issues. You would present that decision making would be a constant struggle/stalemate and would seek Sole Custody on those grounds.

She is trying for shared access but will not co-operate with a stable schedule up till now, unlikely. You have significant Status Quo, she would not get more access without your say so.

You can ask for a stable, defined access schedule but she will just as often cancel on you I bet. Offer every other weekend and optional time during the week, for example after school and for dinner one day a week.

She has not shown any involvement in the child's life, doesn't participate in actual parenting and has not been there for offered access for the last months. You are primary caregiver and your child is secure and settled in your home and routine, any disruption of this would open up far more hurt and psychological issues that even the initial separation did.
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Old 02-11-2010, 08:19 AM
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Mess wrote...

You're basically correct, I would just add that it is possible to have Joint Custody/Shared Access or Sole Custody/Shared Access. It is possible to have Joint Custody but one parent as primary residence (over 60%). Some of these combinations are maybe less likely because why have sole custody but shared access?

Isn't the idea of joint custody when the living arrangements is not 60/40 otherwise it is shared custody? Joint custody accomodates for all combinations of living arrangements except the 60/40 split(Shared)

It seems if she is adamant on wanting some say in things, then it would be joint custody and she would have limited access - which I still want defined into a plan.
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Old 02-11-2010, 12:13 PM
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Sole vs Joint concerns who makes decisions i.e who has control.

Shared vs non-shared concerns whether the time split is within 40/60 or not, and that is important to have written down since it determines who pays CS.

So there can be all sorts of combinations, though some less likely. If both parents are willing to take financial responsibility, then sole/shared can happen.

From the facts that the OP has provided it sounds to me like the mother wants shared custody on paper, but not in actuality, so that she wil not have to pay child support.
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Old 02-25-2011, 01:39 AM
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Dinkyface, great observation. That seems to be the case for sure, which as any parent in her position should do, pay up to help. It sounds like you will get your sole custody, which is very important if you feel she is not a competent parent. Document everything, leave a note pad by the phone, record her, whatever, but document it, it will come back to help you in many ways. Best of luck to you.
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Old 02-25-2011, 02:45 PM
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yes, it looks like you may get sole custody.
But if you want to settle this you might want to consider making her an offer that gives her some say in their lives (ie not changing schools without her consent), but leaves you with the right to day to day decisions. If you can figure out which things she really wants a say on (if she even does) then you might be able to settle this and avoid court. Becasue you KNOW that the lawyer she hires is going to tell her "children should be with their mother".
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Old 02-25-2011, 04:34 PM
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Okay...it has been a year since I first created this thread.


1. I received joint custody for both boys...the judge was adamant to my ex that she not interfere in the day - day aspects such as was occurring (and noted in the original post), but didn't go so far as to award sole custody.

2. Things settled down for quite some time, until Thanksgiving...after that she arranged for my oldest to visit and stay over more frequently and declared at end of November that he was living with her FT and that was his decision. He has basically been staying there ever since and visits at my place with a couple of stay overs.

3. I am back in court in a few weeks to work through that issue...my oldest will wish to stay with her and child support will kick in from me to her.

4. The youngest only visits her every 2 - 3 weeks for a few hours at a time. I found out (this week) she is constantly belittling me during those visits and telling him he can come and stay with her - this is not in his best interest for lots of reasons (between him and her).

In court to get sole custody of the youngest again based on defacto custody, little involvement on her part and verbal and emotional abuse towards him - he has come home several times saying he never want to see her again and last week, she was an hour late getting him home and she needed to 'chat ' with him - he was really upset about the 'lessons' she need to teach him, but would not give details until the last day or so.

Do I stop access until we go to court? (Probably 1 or 2 more visits before the court date), or will that be seen in a bad light by the judge?


I believe I have a strong case for sole custody of the youngest and joint of the oldest (he is 16 soon, so his wishes are more appropriate).

I find it really frustrating that she can ignore existing final orders, have minimal visits, be abusive and still think she can have the boys (it is all about the money, not their best interest) as I know she would stop working if she had them both, but does not 'parent' them as I have in the past and currently.

IN the original court case she was the applicant and said the boys would live with me - which is what is on the Final Order.
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