Community Legal Information Association of Prince Edward Island (CLIA PEI) - Legal Information for Youth

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Having a Baby

Child Custody and Access

Having a baby



Helpful programs

Best Interests of the Children in Custody and Access

For more info and to register contact CLIA:

Positive Parenting from Two Homes

For more info and to register:

Family Legal Aid

To see if you qualify, call:

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CLIA Family Law Information

Custody means the right and responsibility to care for a child. It includes the right to have the child live with you and the right to make decisions for the child. The PEI Custody Jurisdiction and Enforcement Act says that, unless otherwise ordered by a court, the parents of a child are joint guardians of a child and are equally entitled to custody of the child.

If parents:

  • are not living together when the child is born,
  • have not lived together since the child's birth, and
  • the non-custodial parent is not involved with the child,

...then the parent the child lives with has "de facto sole custody". De facto sole custody means an assumption of sole custody, but without legal documents to back it up. If this is your situation, it is a good idea to have papers stating that you have sole custody. You will need a lawyer.

An issue that can be affected by your custody arrangements is your ability to visit or move to another location with the children. If you have joint custody with the other parent, along with day-to-day care of the children, you cannot move the children to another province unless you get permission in writing from the other parent or the court. If you have sole custody, you may be able to move, if access and visitation can be worked out with the other parent, or if the court gives you permission.

If it goes to court, what will the judge decide?

As long as the custodial parent is a capable caregiver the judge is unlikely to change custody. The right to custody does not depend on the age of the parents. Naming (or not naming) a parent on the birth certificate will not affect custody rights for either parent. A judge will often prefer to leave the child with the person who already has custody, unless that situation is harmful to the child. In every case, the judge looks at what is best for the child.

A judge may ask for a home study in order to have more information to make a decision. Home studies provide a way for judges to get more information about the people who want custody and about the child. The judge may order a social worker or another person hired by the court to do an assessment.

People involved in a custody dispute can decide to come to an agreement at any point in the process, either with or without the help of mediators or collaborative practitioners (Mediation and collaborative practice are ways to resolve conflict outside of court. See How can I deal with conflict?). If they do reach an agreement, the home study is not completed and the terms of their agreement are sent to the judge. If they cannot agree, the judge will hear the case in court, including the results of the home study, and make a decision based on the best interests of the child.

What is access and visitation?

Access and visitation refers to the rights of a child and the parent who does not have the child living with him or her to spend time together. It also includes the right to information about the health, education and well-being of the child, but does not include the right to make major decisions about the child.

Judges grant access and visitation because it is believed that it is important for a child to have a meaningful relationship with both parents. A child has a right to know both parents and both parents have the right to know what is happening with their child.

Judges generally think it is in the best interests of the child to have maximum contact with both parents, so they will usually order access and visitation.

What could cause access and visitation to be denied?

The court denies access when:

  • the child does not want to see the non-custodial parent for good reason (for example, this might happen in a family violence situation or if the child has not seen that parent for a long time);
  • there is a history of not returning the child to the custodial parent.

In some cases one parent may be concerned about the child's safety during visits with the other parent. A judge may order "supervised or restricted access" in this situation. Supervised access can mean that the visit with the child is supervised by another person or that another person is present when the child goes from one parent to the other. A judge might also put certain restrictions on access, such as ordering that the parent not be under the influence of alcohol immediately prior to or during access with the children.

There are programs that can help when you are trying to figure out custody and access [see related information to the right]:

  • Best Interests of the Children in Custody and Access and other Family Law Courses: CLIA hosts public education sessions on family law free of charge. During these sessions, you will learn what you can expect if you have to go to court to resolve a custody and access dispute; how the best interests of the children can be met; ways to resolve your dispute outside of court; and other family law topics. To find out when the next presentation is happening, contact CLIA.
  • Positive Parenting from Two Homes: Parents learn to understand their feelings, their children's needs, and to develop a business-like relationship with the other parent.
  • Family Legal Aid: provides legal assistance to people who cannot afford a lawyer for family law matters. You must make an application to see if you are eligible for this service.