Children in Separation

Custody & Access

On granting a final order of judicial separation or divorce, the court may make orders in relation to custody and access in respect of dependent members of the family, children in particular. They may deal with issues, aspects or matters dealing with the welfare, custody of or access to the child.

Custody is the right to immediate physical care and control of a child. Married persons are presumptively entitled to the custody of their children jointly. Proceedings may be taken by a guardian to recover custody against a person who wrongfully takes the child away or detains him or her.

Orders for custody and access may be made in the context of divorce and judicial separation. A preliminary order may be made in relation to custody, access or any matter relating to the welfare of the child.

There is statutory power in divorce legislation to make an order as to a spouse being unfit to have custody of the dependent children of the family. This would preclude that person from having custody. The order is rarely granted.

Guardianship

The fact that a child is in the custody of one parent does not preclude the rights of the other parent as guardian. The other parent will usually be entitled to and granted rights of access.

He or she will remain a guardian with a right to be involved in the making of key decisions regarding the welfare, education and upbringing of the child.

Joint Custody

In divorce, an order of joint custody may be made. This may involve the child residing for periods with each parent on a cyclical basis.

In joint custody, which involves a sharing of custody, the courts emphasise that access is not so much a right of the parent but something which is almost invariably in the interests of the child.

This cycle may be weekly, bi-weekly or longer, including yearly. The arrangement should not disrupt the child’s life, particularly where one parent lives a significant distance from the child’s school and centre of gravity.

Factors

Decisions regarding custody involve a considerable degree of discretion on the court’s part and the particular circumstances and facts will be determinative.

Inter-spousal conflict may be a factor that leans against joint custody. On the other hand, parties may succeed in maintaining a good relationship with their children while in conflict, which may facilitate an order of joint custody.

Where one parent obtains custody, the other parent will generally be entitled to access. If access is being denied, an application may be made under the Guardianship of Infants Act to require the granting of access.

Modern Approach

Formerly, access was considered in terms of parental rights. However, over the last 20 years, it has been recast in terms of the rights of the child, which have been emphasised as the key consideration. It upholds the rights of the child to keep a relationship with the other parent where the child is in the custody of one parent.

The European Convention on Human Rights provides that parents and children should have access to each other, and a restriction on access must be justified. The UN Convention on the Rights of the Child emphasises the rights of children to maintain relationships and contact with both parents.

Some courts have taken the view that the European Convention requires that the child be heard in relation to access proceedings. This does not necessarily mean that a child of young years or a relative of the young child will give evidence.

The European Convention may require that the child’s interests be properly considered and that the child is represented. It may be appropriate that the child’s position is considered by a guardian ad litem or by a psychologist, or by psychological evidence put to the court in appropriate cases. It would often be appropriate to consult the child and consider the child’s views.

The legislation requires that the court, in considering orders under the Guardianship of Infant Acts, must have regard to whether the child’s best interest is promoted by maintaining personal relationships and direct contact with both parents on a regular basis.

Access

Access is very rarely refused. Exceptionally, supervised access may be required as a condition, particularly where there is a suspicion of abuse.

Access has been granted notwithstanding evidence that the children were afraid of the father and did not know him.

Access may be subject to conditions. In older cases, access may be conditional on the parent who seeks access not having a new partner present. This reflected a view of moral welfare that is probably somewhat outdated and is less of a consideration.

The access order condition should not be overly prescriptive. It should not seek to appease the other parent’s concerns and needs unless they are objectively demonstrable.

Access may be refused in highly exceptional circumstances. This is where the relationship is extremely poor and a parent has absented themselves for a prolonged period.

In divorce cases, access issues may be sent to the District Court to be determined.