Until parents of a child make an agreement or get a court order dealing with custody and access they are generally considered joint guardians of their child, with equal rights, powers and duties. Both the Divorce Act and The Children’s Law Act use the terms custody and access to describe the rights and responsibilities of parents in relation to their child. Over time, both the courts and family law professionals have begun to move away from this language, but because our laws still use these terms, it is important to understand the concepts.
Custody typically refers to the rights and responsibilities to care for a child. It includes making the major decisions in a child’s life, such as where the child will live and go to school, the type of religious or spiritual education the child will take part in, and whether or not to seek or consent to medical treatment.
Access typically refers to time a child spends with their non-custodial parent. The parents of a child may agree to, or a court may order, access for someone other than a parent. This may happen when a child has a close and meaningful relationship with someone like a grandparent or other extended family member.
When only one person has custody of a child the term sole custody may be used. If one parent has sole custody a court will usually order that the other parent have access, unless it would not be in the child’s best interests. When more than one person has custody of a child and shares these responsibilities the term joint custody may be used. Traditional joint custody requires parents to cooperate with one another to reach decisions related to their child’s life. Joint custody doesn’t necessarily mean that the child will actually spend time living with each parent, although that is one possibility.
Regardless of the terms used, it may be helpful to remember that there are basically two aspects of caring for children to be considered when parents are not living together. One aspect is the right and responsibility to make major decisions for the child. The other aspect concerns where the child will live. The following terms describe some of the various combinations of these two aspects.
Shared Custody: the child lives with each parent for an equal, or close to equal amount of time and the parents generally share decision-making responsibilities.
Parallel Parenting: the child spends time living with each parent and that parent generally has complete responsibility for the child when the child is with them.
Split Custody: each parent has the physical custody of one or more children – for example, a family may have the older children living with one parent while the younger children live with the other parent.
Primary Residence: sometimes used to describe situations where a child will live mainly with one parent even though the parents have joint custody and share major decision-making responsibilities.
Nesting: used to describe joint custody situations where the child remains in the family home while the parents take turns moving in and out.
Parenting Time: sometimes used instead of the term “access” but may also be used simply to describe the time each parent spends with the child.