Custody – Access – Guardianship
In essence, custody relates to the physical day to day care and control of a child. The spouse who has day to day care and control of a child is said to have custody of the child however it is possible for parents to have joint custody i.e. both have custody and day to day control of the child. Married parents are the joint guardians and custodians of their children and so custody obviously only becomes an issue when they separate or no longer reside together.
In such circumstances, we recommend that a couple try to reach agreement in relation to who has the day to day custody and care of the children however in certain circumstances this cannot be agreed and an application must be made to court. The court then decides what is in the best interest of the children. It is in the interests of the child to maintain as much stability as possible and in doing so need to live in one house primarily and go to one school. Therefore even if joint custody is granted, one will have the primary care and control of the child. The paramount factor the court takes into consideration is the welfare of the child which includes the child’s religious, moral, intellectual, physical and social welfare.
When one party is granted custody or primary care and control, the other party is entitled to apply for access. It should be noted that access is the right of the child not the right of the parent. The court will usually grant access unless there is a compelling reason not to do so as a child has the right to visit and interact with each of their parents.
Depending on the circumstances, access may be supervised or monitored when there is a compelling reason to limit one parents access.
Again, parents can agree upon access arrangements themselves or an application can be made to court to impose arrangements after reviewing what is in the children’s best interests.
Obviously, it is preferable if the parties can agree upon custody and access rather than the court imposing set times, places and dates.
It should be noted that custody and access orders are always open to modification at a later date and are never final orders.
GUARDIANSHIP/CUSTODY IN A NON MARITAL RELATIONSHIP
In a non marital relationship, the mother automatically has sole guardianship of a child and as such is entitled to custody. The mother of the child can agree to the father becoming a joint guardian but if she does not the father of the child can apply to court to be appointed as a guardian.
Similarly a non marital father can apply for custody or access and can do so even if he does not have guardianship at the time – generally both applications will then be heard together.
Even in the event of a father’s application for guardianship/ custody being declined, the father has the right to apply for access. In general, the courts consider it extremely important for the child to have access to both parents. Therefore the court is very reluctant to deny access rights to one parent.
ACCESS FOR OTHERS INCLUDING GRANDPARENTS
A grandparent or other person who has acted as a parent to a child or indeed is related to a child may apply to Court for access to a child. There are two parts to this process:
1.Firstly an application must be made for leave to apply for access. Basically this is a request to the court for permission to apply for access. The court, in arriving at a decision at this stage, will consider:
a. The persons relationship / connection with the child
b. The effect if any on the childs life ie any disruption caused
c. the wishes of the child’s guardian
2.If leave to apply is granted, an application can then be made to the court in the usually manner to apply for access.