Custody/Access

Making a custody/access application

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Grandparents usually get access with their grandchildren through one or both of the parents without a court order.

If you need to make a court application, then it is important to know the legal words that are used to describe different parenting arrangements or contact with grandchildren.

‘Access’ is a legal term that means visits with the child or children. In some situations, though, grandparents may not get visits with their grandchildren, if the parents are not allowing visits to take place. This sometimes happens when the parents are no longer together, and are disagreeing about the parenting arrangements for their children. 

'Custody' is a legal term that describes where a child lives, who makes decisions about raising the child, and how these decisions are made. In some situations, grandparents may want to apply for custody of their grandchildren. This may happen in situations where there are concerns around the safety or well-being of the children while they are living with their parents. Sometimes, grandparents will ask for custody of their grandchildren if the Department of Community Services (Child Protection Workers) have become involved with the family. In some cases, Child Protection may place the children with their grandparents, if it is not safe for the children to stay with their parents, or there is a substantial risk of harm to the grandchildren.

The Maintenance and Custody Act, sometimes called the ‘MCA,’ is the law used in Nova Scotia to make applications to the court dealing with issues like child custody or access, or child maintenance, when there is no divorce proceeding. This means that when a grandparent makes an application in regards to their grandchildren, this is usually the law that they would use.

1. Getting ‘leave of the court’

Before September 1, 2014, grandparents had to ask for 'leave of the court' as part of any application for custody of or access with their grandchildren. This meant that grandparents had to ask for the court's permission to make their application.

The Maintenance and Custody Act was changed on September 1, 2014. Grandparents can now make an application to the court under this Act for access with their grandchildren without having to ask for leave. This change applies to access applications only - applications for visits with grandchildren. Grandparents must still ask for the court's permission when applying for custody of their grandchildren. In these cases, the court will decide the leave application first. If leave is not granted, then the rest of the application for custody cannot move forward, and the legal matter ends.

If you are applying to the court for custody of your grandchild, you have to give information about why you should be given permission to make the application. This is called 'asking for leave.' You ask for leave at the same time that you make your application for custody.

When you ask for leave, you will have to explain to the court why you are making the application, why you are asking to have custody of your grandchildren, what connection you have to the children involved (what role you play or have played in the children’s lives), and why you should be given leave to make your application. A judge will decide whether or not to grant you leave, based on the facts of your case. It is also possible for the parents to agree that a third party - for example, a grandparent - be given leave to apply for custody. If you are given leave, you will then address the main application for custody of your grandchildren.

It may be helpful for you to also provide this information to the court if you are applying for access with your grandchildren, even though you do not need to ask for leave in these cases.

Remember that it is up to the judge hearing the matter to decide the outcome, or to you and the parents to agree on what arrangements should be made.

Even though grandparents can now make an access application without getting the court's permission, this does not mean that the court will automatically give grandparents visits with their grandchildren. Also, just because leave is granted for a grandparents' custody application does not automatically mean the grandparents will get custody of their grandchild. The children's needs and well-being are always the most important factors considered by the court. Decisions like this are complicated and you should have legal advice to help you decide how to make your case to the court, and to understand what things a court will look at when deciding what to do in your case.

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2. What does ‘best interests of the child’ mean?

This is the test that the court uses to make decisions about custody and access of children. The children’s needs and well-being are always the most important factors. The judge must decide what is best for the children, not what is best for their parents or grandparents. Sometimes the parties can agree on what is in the child’s best interests and come up with their own agreement or court order. A judge will need to agree to the terms if you want to register the agreement with the court or have the order issued by the court.

The best interests of the child are always considered when decisions are made regarding the custody and access of children. For example, the court might look at your existing relationship with the child and whether your involvement would have a positive or negative impact on the child’s life. The court may also take into consideration your relationship with the parents of the child.

A list of best interest considerations was added to the Maintenance and Custody Act in February 2013. On September 1, 2014, factors relating to grandparent access were also added. To view the list, click here.

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3. Can only one grandparent make the application, or do both grandparents have to apply?

A grandparent can make an application on their own, or both grandparents can apply together, if they both want to visit with or help care for the child or children.

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4. Do grandparents automatically get custody of a grandchild if the parent of the grandchild is under 19?

No. Grandparents who are seeking custody have to apply for leave and for custody even if the parent of the grandchild is under 19.

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5. Where do I make the application for custody of or access with my grandchildren?

Custody and access issues usually have to be dealt with in the court nearest to where the children are living. For example, if the grandparents live in Kentville, and the grandchild is living in Truro, the application will likely have to be heard in Truro. If the child lives in the Halifax Regional Municipality or in Cape Breton, the application must be made at the Supreme Court (Family Division) at these locations. If the child lives outside of these areas, the application will be made in the Family Court.

If the children do not live in Nova Scotia, you will probably have to contact the court nearest to where they are living to find out how to make an application there. The laws in other provinces may be different than the laws in Nova Scotia.

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6. How does a grandparent apply for custody of or access with their grandchildren?

You can start your application through a lawyer. This can be a lawyer that you hire privately (retain), or get assigned to you through Legal Aid, if you qualify. You can visit Legal Aid’s website for more information.

You can also start a court application without a lawyer.

If you do not have a lawyer, you can start most court applications yourself by contacting the appropriate court, and asking what processes they have for starting an application. Many courts, like the Family Courts and Supreme Court (Family Divisions), will have an intake process, where you can get help from a court officer to start your application.

Many forms for starting applications are available online, as well. You should get advice from a lawyer or speak with court staff to make sure you are filing the right documents for your case. You will usually have to file several documents to start an application.

Remember that a grandparent must first get the court’s permission to make an application for custody of their grandchildren. This is called applying for leave, and is done at the same time as the rest of your application, but has to be decided first. If you are not given leave, then the rest of your application for custody cannot proceed. If leave is granted, then your application for custody will proceed through the rest of the court process.

As of September 1, 2014, grandparents no longer need to ask for leave when applying for access (visits) with their grandchildren.

Even though grandparents can now make an access application without getting the court's permission, this does not mean that the court will automatically give grandparents visits with their grandchildren. Also, just because leave is granted for a grandparents' custody application does not automatically mean the grandparents will get custody of their grandchild. The children's needs and well-being are always the most important factors considered by the court. Decisions like this are complicated and you should have legal advice to help you decide how to make your case to the court, and to understand what things a court will look at when deciding what to do in your case.

 

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7. The parents have their own order for custody and access. Can I still make an application as a grandparent?

Yes, you can start your own application for custody or access with your grandchildren. Depending on your situation, you may also apply to be added as a third party to the parents’ ongoing court matter. For example, if the parents are involved with a child protection matter in court, you may apply to be made a party to that matter, so that you become involved in that process. You should speak to a lawyer for advice if this is your situation as these cases can become complicated.

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8. There is already a child custody or access order between me and the parents of my grandchild. How can the order be changed?

You can apply to change, or ‘vary,’ your court order if there has been a material change in circumstances.

A material change in circumstances, sometimes called a ‘substantial’ change in circumstances, means that something important has changed in your situation, or the other parties’ or children’s situations, since your last order was made. As a result of this change, you may wish to ask the court to update your order. The change needs to be substantial, and not just a minor change, and must be a change that was not known at the time when the last order was made.

For applications to change child custody or access, examples of a substantial change in circumstances could include:

  • the parenting arrangements have changed (for example, the child has moved back with one of the parents)
  • one of the parties moved and the visiting arrangements will be affected
  • the access arrangements need to be updated because the children’s schedules have changed

Generally, the same process applies for changing an order as it does for getting an order in the first place, except that you have to show the material change in circumstances. There may be other things to consider too. You should get advice, because these issues are complicated.

Custody and access issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with in Family Court, or in the Supreme Court (Family Division) if the children live in the Halifax Regional Municipality or Cape Breton.

If the children do not live in Nova Scotia, you will probably have to contact the court nearest to where they are living to find out how to make an application there. The laws in the area where your grandchildren are living may not be the same as the laws in Nova Scotia.

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9. If the parents and grandparents agree on the parenting arrangements, can we write our own court order?

There are different ways to get, or change, a court order. The court in your area may offer services to make this easier, for example, by going to conciliation and having a trained court officer prepare the order.

You may wish to hire a lawyer to prepare the order, so that all of the parties can sign it showing their agreement.

You may also prepare the order yourselves if you feel confident that you can do this properly. Preparing court orders properly is not  easy so you should get advice from a lawyer or have a lawyer review your draft documents to make sure that they are prepared properly.

If you have a new order prepared, on your own or with a lawyer, that order needs to be filed with the court for it to become 'official.' You may also have to file other court documents and pay a fee for this.

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10. What do the words ‘custody’ and ‘access’ mean?

Custody is the legal term used to describe where the children live, and who makes decision for or about the children.

Access, also called ‘visitation’ or ‘parenting time,’ usually refers to the time the children spend with the parent or other person that they do not live with. Children may also have access time with their grandparents, or other family members, depending on their particular situation.

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11. What are the different types of custody?

There are several different types of custody. Some of the terms used to describe parenting arrangements include ‘legal custody’, ‘physical custody,’ and ‘joint custody’ and describe who makes decisions for or about the children, and where the children live.

The terms that the court uses to describe parenting arrangements are explained below. It is helpful to understand these terms, but remember that there are lots of different parenting arrangements, and some may not fit neatly into these categories. It is more important to have a detailed parenting plan/arrangement in place, than to try to make your arrangement fit into one of these categories. You should have legal advice when dealing with these issues.

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12. What is ‘legal custody’?

On one hand, custody refers to who makes decisions on issues involving the children. This is sometimes referred to as ‘legal custody.’  It refers to major decisions, such as:

  • religious upbringing
  • education
  • medical and dental care decisions.

It does not usually include the day‑to‑day decisions involving the child, for example, when the child goes to bed, what the child eats for breakfast, etc. Those decisions are usually made by the parent, or in some situations, the grandparent, who has the child in their care at that time, although all parties involved in raising the child are encouraged to discuss these daily routines.

If one parent or party makes these major decisions on their own, then normally they are considered to have the legal custody of the child. Sometimes when one party has custody, it can be described as ‘sole’ (or ‘full’) custody, but the court does not use these words very often anymore to describe this type of custody.

If parents or parties make the major decisions described above together, then the way they work together to make those decisions can be described in agreements or court orders as the parties having ‘joint custody’ of the children.

There are lots of other ways that parties can make decisions about the children. For example, sometimes parties will agree to talk about these decisions, but one of them will have the final say. A lawyer can help you figure out what kind of arrangement might work best in your situation.

If the parties are having difficulty making a joint decision, they may use another method of resolving their dispute, like mediation. If the parties are still unable to come to a decision, and a court application was filed to address these issues, then the court will impose a decision on them.

The right to see or get information from professionals, like doctors or teachers (medical reports or report cards) can be made a part of any court order if the parties agree or a court orders it. The same terms can be applied to grandparents making an application for custody of their grandchild. The grandparents and one or both parents of the child, for example, may have a joint custody arrangement, or the grandparents may be granted custody of the child.

If the grandparents have custody of the grandchild, then they make all the major decisions in the life of the grandchild; however, the parents of the grandchild may have some input on those decisions. The parents of the grandchild would often still have the right to see the child’s records (like report cards or medical reports), and be able to speak with and receive information from any professionals involved with the children (like teachers and doctors). Every situation will be different, though, and will depend on the facts of the case, and how well the parties involved can work together to parent the children involved. You should have legal advice to see what might work best in your situation.
 

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13. What does ‘primary care and control’ mean? What is a ‘primary caregiver’?

‘Primary care and control’ means that the children live with one parent or grandparent most of the time, and that person also makes the decisions about the children. It is not given a legal definition in the Maintenance and Custody Act.

Sometimes, the term used is ‘primary residence’ or the phrase ‘the children reside primarily with Parent A.’

These terms are often used to make the wording of an agreement or order easier to understand. It does not mean that the primary caregiver has any extra authority or decision-making power over the other parties.

As with any other court order or agreement, the parties are free to set out the details of their parenting schedule for the children as part of their parenting arrangements with each other.

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14. What is ‘physical custody’?

Custody can also refer to where the children are living at any given time. This is sometimes referred to as ‘physical custody.’

Shared and split custody are types of physical custody. Shared and split custody are defined in the Child Support Guidelines, because certain parenting arrangements can affect how child support is paid.

Shared custody is when one parent or grandparent has the child living with them for at least 40% of the time over the course of the year. Shared custody should only be used when referring to time sharing that affects the payment of child maintenance or support. It does not describe how parties make decisions about their children.

Split custody is when there is more than one child involved, and each parent or grandparent has physical custody of one or more of those children.

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15. Are shared custody and joint custody the same thing?

Shared custody deals with where the children are physically living and whether or not the child spends at least 40% of time in the care of each parent. Shared custody may affect child maintenance payments. The term ‘shared custody’ should only be used in court orders if the parenting arrangement affects the payment of the table amount of child maintenance or support.

Joint custody indicates that the parties make major decisions about the children together. Usually, if the children spend almost the same amount of time in each parties’ home, then the parties will also make decisions together in relation to the children. This is not always the case, but it often is because these parties work together to raise the children, sharing time and decisions.

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16. What is ‘access’?

Access refers to the legal right of the child to visit or spend time with each parent. Children can also have access to grandparents or other third parties, depending on the situation. Access is often referred to as ‘parenting time’ or a ‘parenting schedule.’ There are three basic types of access:

Reasonable Access: a term in a court order or parenting plan that allows the child to visit or spend time with the parent or grandparent at times arranged and agreed upon by all parties. Using the term ‘reasonable access’ gives parents and grandparents flexibility to make their own arrangements without having the specifics outlined in the order or parenting plan. 

Specified Access: a term in a court order or parenting plan that sets out certain times for the child to be able to visit with each parent or grandparent. The terms can be open‑ended (‘every second Tuesday’), or specific (‘every second Tuesday at 6 pm, to be picked up at the coffee shop on 123 Main Street…’).

Sometimes court orders may have combinations of reasonable access and specified access, such as when regular weekly access is left to the parties to decide, but special occasion access, like Christmas or other holidays, is set out or specified.

Access terms can include things like physical visits, emailing, skyping, texting, and telephoning.

Supervised Access: a term in a court order or parenting plan that means a child only spends time with that parent or grandparent with another adult present. Supervised access is generally ordered in unusual situations where there is some risk to the safety of the child, for example, where there are addictions problems, long absences, risk of abduction or untreated mental health issues.

In some cases, a court may decide, or parties may agree, that it is in the child’s best interest not to have any access with one or more of the parties. See a lawyer to help you understand when and why this could happen.

Grandparent access may be looked at in a different way than parent access, so you need to be sure of how the law applies to you as a grandparent. See a lawyer to help you understand your rights, the parent’s rights and the child’s rights in these situations as they are complicated.

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17. Which type of access is best in my situation?

That depends on your particular circumstances, and the needs and best interests of the children. If you are unsure what is best in your situation, you should speak with a lawyer for advice.

Generally, reasonable access will only work if the parties get along reasonably well, and are able to work out the arrangements without conflict. All parties will have to communicate with each other to figure out access arrangements on an ongoing basis. The child’s needs may change over time too.

If you think the other parties may not communicate well enough with you to arrange for reasonable access times, or you want something more specific in your order, specified access may work in your situation. You can have specified access and reasonable access in the same agreement or court order. For example, you may have a specified time every week to see the children, and also additional parenting times as agreed between you and the other parties.

Supervised access is generally only used in cases where there could be a risk to the children’s safety if the visit is not supervised by another adult. Sometimes supervised access is also used to re-introduce a child to a parent, or other person who has been given access with the child, but who may not have seen the child in a long time.

If you are asking for supervised access, be prepared to tell the court who you think could act as a supervisor. This could be a friend or family member – but be sure to ask the friend or family member if they will agree to supervise. There may also be a community organization in your area that does supervised access visits as part of a court program – check with your court to find out if this service exists in your area.

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18. Are there guidelines for how much time a child should spend with each parent or with their grandparents?

There are no specific rules around how much time a child should spend with each parent or their grandparents – every situation is different, and every child is different.

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19. What if my grandchild won’t go for their access visit?

It is not unusual for a child to refuse to go to the other parent's home or to a grandparent’s home. Many children find these transitions difficult and may refuse to go, or if they go, may act out for a period of time after the transition.

Some suggestions to make the transition go more smoothly are:

  • Don't misinterpret the child's refusal to go to the other parent's or grandparent’s home as meaning there is something wrong going on at the other parent's or grandparent’s home.
     
  • Don't misinterpret the child's refusal to transition to your home as the child not loving you. Even kids with a great relationship with a parent or grandparent may sometimes refuse to transition into their care. 
     
  • Don't misinterpret the child's refusal to go to your home to mean that the other parent or grandparent has been discouraging them from going with you. A refusal to transition into your care does not necessarily mean that the other person is trying to discourage the child's relationship with you.
     
  • Be positive with the child about the time they are going to spend with the other parent or grandparent.
     
  • Prepare the child for the transition by giving them age‑appropriate reminders (‘tomorrow you will see your grandparents’; ‘your mother will be here in ten minutes to pick you up’).
     
  • Make sure that the child is not engaged in a fun activity (like a video game or TV show) when it is time to transition into the other parent's or grandparent’s care.
     
  • Engage the child in the transition process. For example, get them to help pack their overnight bag, or have them call the other parent or grandparent to let them know you are on your way.
     
  • Allow the child to bring their favourite comfort items back and forth with them between houses (like their favourite blanket, stuffed toy, or video game)
     
  • Make sure that the transition times are as friendly and comfortable as possible. For example, although it may be a convenient time to discuss issues in relation to the child, if there is any chance the discussion will become uncomfortable or turn into a disagreement, hold off on the discussion for a time when the child is not present.
     
  • Make sure that the child has everything they will need for their time with the other parent or grandparent so that there are no arguments during the transition time (like homework or sports equipment).

Children may not want to go with the other party because they are worried about the person they are leaving. Sometimes the transition is more difficult and traumatic for the parent or grandparent than it is for the child. Let the child know that you will be fine without them in your care. Be careful that you aren’t giving them any non‑verbal cues that you do not want them to go. Kids can understand body language!

In some cases, children, parents and grandparents may need the help of a professional, like a social worker or therapist, to deal with issues around transition or anxiety. Some family resource centres may also be able to help or may have helpful programs that you may want to take.

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20. What if my situation is urgent or an emergency?

If you are looking to start a court application for custody or access on an urgent or emergency basis, you can ask court staff about this process. You should also speak with a lawyer for advice on whether or not your application may be considered urgent or an emergency by the court.

An ‘emergency’ application may be filed where there is a likelihood of danger to those involved, either one of the parties or a child. For example, if there is a risk of violence or immediate harm, or the child is on the way to the airport and may be taken out of the country, this may be considered an ‘emergency.’ A judge will decide whether your situation will be treated as an emergency.  How these decisions are made may happen differently depending on the court you are dealing with and the rules that they go by. If you have questions, ask a court officer for more information about this process.  

An ‘urgent’ application may be filed when your situation is not an ‘emergency’, but perhaps could be considered time-sensitive, or urgent because of special circumstances. A judge, or a court officer, will decide whether your situation will be treated on an urgent basis, and whether or not your matter will be dealt with quickly.

Even though the situation may be urgent or an emergency, grandparents must still ask for leave of the court when applying for custody of their grandchildren. This means that you have to get the court's permission to go forward with your application. You ask for leave at the same time that you make your application for custody.

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Last updated on September 2, 2014 - 10:02am
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