:: ANSWERS ON CUSTODY & ACCESS RIGHTS ::

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+ How do I determine and establish an arrangement for our child’s custody?

Spouses, whether married or not, who decide to end their relationship after having one or more children, inevitably will want to establish the child custody and support payments. Two options are available to them, depending on whether the couple is married or involved in a de facto union. These accessory measures can be requested jointly in a divorce application or, in the case of a de facto separation, in an independent motion.

In all litigation regarding custody rights, the child’s interests always come first in the assessment by the Courts. Thus, the Court will examine what is in the child’s best interest in light of the facts presented, without relying on the parents’ preferences. When custody rights are in question, the Court asks the parents to participate in a family mediation session to try to resolve the conflict peacefully. In case of a disagreement, the Court will decide on the application and will evaluate the respective parental capacities of each parent, based on several factors determined by jurisprudence, before ruling on the question.

The Judge will have to ensure that the parent who obtains custody of the child facilitates the child’s contact with the other parent, as provided by law. The relationship between the grandparents and the grandchildren must also be favoured. The Judge may decide to reexamine the situation later. The Judge may also take the child’s request into account, if he or she considers it reasonable.

If you want to institute Court proceedings for custody and access rights, please see our section on Determining Custody & Access Rights

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+ Can my child decide where he or she prefers to stay?

In practice, children cannot decide where they want to live. However, children have the right to be heard to defend their interests, directly or through a lawyer. When the child is mature enough to express what he wants, it will then be possible to appoint a lawyer on an ad hoc basis. The older the child who expresses his wishes, the more seriously the Court will consider this in its assessment.

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+ I believe that my ex-spouse is trying to turn the children against me. What should I do?

When the conduct of one of the parents has the effect of turning the children against the other parent, this diminishes parental capacity to be awarded custody. This highly reprehensible conduct may even justify a change of custody. Since separation is a difficult situation for all family members, the parents are obliged to spare their children from parental hostilities by not using them as go-betweens.

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