Basics of Family Law
Custody, Guardianship, Access
How are these issues usually settled?
Many parents going through a separation or divorce are able to come to a fair and mutual agreement about custody, guardianship and access without going to court. This agreement usually forms part of a larger separation agreement that covers other issues as well, such as child support or the division of property.
If you and your children's other parent decide to work out your own agreement, we recommend you write it down and file it with a court. Once it's filed, you can ask the court to enforce it for you if you run into difficulty later on.
If you have trouble working out an agreement, there are people who may be able to help. They include private mediators who are trained in helping couples resolve family issues, and Family Justice Counsellors.
Sometimes, however, an agreement just isn't possible, and you will need to go to court to ask a judge to decide.
If you do have to go to court, the judge will make a court order based on the best interests of your children - not on what is most convenient or best for you or the children's other parent. (For more about best interests, please see the Family Relations Act, section 24.)
A special note on access:
Where parents cannot agree on access and go to court to ask a judge to decide, the judge will usually issue an access order, unless the judge believes the other parent might harm or kidnap the children. In those rare cases, the judge may refuse access or order what is called "supervised access," where the children can spend time with the parent who does not have custody only with another adult present.
Important!
If you fear for your safety or the safety of your children, you should talk to a lawyer about getting a protection order in addition to an order restricting the children's access to their other parent. Please also see our web site section Keeping Your Family Safe for more information.
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