Custody, Access, and the Best Interests of the Child
Core concepts
The governing standard is the best interests of the child, assessed through factors such as the child's needs, age, views, relationships with each parent, ability to care, history of care, family violence, and cultural and linguistic heritage. Understand decision-making responsibility and parenting time (the modern Divorce Act terminology), access, and the distinction between legal custody (decision-making) and physical custody (residence). Courts consider maximum contact with both parents where safe, and may order supervised access or parallel parenting. A child's views are weighed, not determinative, depending on maturity.
Traps in questions
- Treating the child's preference as decisive regardless of age or maturity.
- Assuming shared parenting is always in the child's best interests.
- Ignoring family violence and its effect on the child.
- Confusing decision-making responsibility with parenting time.
- Overlooking the status quo and the primary caregiver.
Rule of thumb
Ask: what arrangement serves this child's safety, stability, and relationships? Then check the statutory factors.
Worked example
A ten-year-old expresses a preference to live with one parent. The court considers the child's maturity, the reasons for the preference, each parent's caregiving history, and any violence concerns. The preference informs but does not decide the order; the court may order parenting time with both parents with conditions.