When discussing children’s arrangements after a divorce, three terms often arise: “custody” , “care and control” and “access”. While these terms all pertain to a child’s upbringing, they address different aspects of parental responsibility and involvement.
What is Custody?
Broadly, “custody” refers to the making of major decisions for the child. This encompasses significant choices that impact a child’s long-term welfare, such as their education, healthcare, and religious upbringing. For example, the parent(s) with custody will be able to decide which school a child attends or whether they undergo a specific medical treatment.
Typically, the Courts will order joint custody, meaning both parents typically share the responsibility for these important decisions, even after the divorce is finalised. This approach is adopted so that parental bonds are maintained, and both parents can execute their common responsibilities for the upbringing and development of their children. This reflects the Courts’ position, which is that it is generally considered to be in the child’s best interests to continue having a meaningful relationship with both parents, even after the parents’ relationship has broken down.
There are two main exceptions where sole custody might be considered:
- Where a parent has ill-treated or exhibited violence against the children.
- Where there has been a complete lack of co-operation between two antagonistic parents.
Notwithstanding this, the threshold for sole custody is extremely high. For a parent to be granted sole custody, they would typically need to demonstrate that the other parent is so unfit for parenting that the benefits of their involvement in the child’s life do not outweigh the harm they would bring to the children, or that co-operation is impossible even after mediation and counselling, and this lack of co-operation is harming the children. There must also be evidence to substantiate these claims.
What is Care and Control?
“Care and control” is about the upbringing of the child on a day-to-day basis. The parent granted care and control is the one with whom the child lives primarily, and the one who manages the child’s day-to-day life. This includes routine matters such as meal times, schoolwork supervision, and the child’s daily activities.
Care and control is usually granted to one parent. Unlike in custody, where joint custody is consistently preferred by the Courts, care and control typically designates one parent as the primary caregiver for the child’s daily needs and living arrangements. The practicalities of daily living arrangements make it necessary for one parent to primarily hold this responsibility.
When deciding on care and control, the Court’s paramount consideration is always the welfare and best interests of the child. This involves assessing which parent can provide a more stable and suitable environment for the child’s daily upbringing.
What is Access?
In essence, access is what allows both parents to remain actively involved in a child’s life, even if one parent is primarily responsible for the child’s daily care and control.
The parent who is not granted care and control will typically be granted access to the child to ensure they can maintain a meaningful parent-child relationship. Access can be regulated by a Court Order or sorted out between the parents themselves. For instance, parties may agree that the parent who does not have care and control will be allowed day access to the child twice a week on specified days and will be at liberty to seek overnight access with the child.
In some rare circumstances, supervised access may be ordered, meaning that when the parent without care and control has access to the child, these interactions must be supervised by a third-party. This third-party will typically be the parent with care and control of the child or a social worker. Supervised access may be ordered if a parent has been estranged or alienated from the child. It may also be ordered if the child is uncomfortable being left alone with the parent due to the lack of a strong bond. More severe factors like violence, mental illness, or inappropriate parenting tend to justify supervised access.
Significance
Custody, care and control, and access are significant as they collectively define the legal framework for parental responsibilities and a child’s upbringing after parents separate or divorce. Their importance stems from the Courts’ overarching principle that the welfare of the child is the paramount and overriding consideration in all such matters. Understanding these terms is key in understanding one’s responsibilities and rights as a parent over the course of divorce proceedings.
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