If you were the primary caregiver for your child during the marriage and want the child to reside with you post-separation, then you should apply to have his/her primary residence with you and for your spouse to have ‘contact’ or limited access to your child.
In these situations, for example, one parent will have the child reside with her/him most of the time and the other parent will get parenting time which is often every other weekend or a few days a month.
Please note however that you must first prove that you having primary residence, and your spouse having contact is to the best interests of the child by arguing the following factors as per s.37 of the Family Law Act:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the nature and strength of the relationships between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability, given the child’s age and stage of development;
- the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
- the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
- whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
- any civil or criminal proceeding relevant to the child’s safety, security or well-being.
The primary caregiver for the child has the right to make day-to-day decisions for the child. The person with ‘contact’ has limited rights such as being informed of the other’s parents’ plans to move to another town, enrolling the child at a certain school, being consulted respecting major decisions, etc.
Contact is often ordered when one parent cannot or is not suitable to care for the child on a shared parenting basis. These parents usually have issues with proper parenting such as:
- Crazy work schedules
- Issues with drugs or alcohol
- Living in a separate town than the one the child lives in, etc.
People other than parents can also have ‘contact’ with the child. This can be arranged through an agreement or a court hearing. Persons having contact with the child can be the child’s grandparents, aunts or extended family. These people will often want to have rights to see and care for the child in case of separation. In other words, you do not have to be guardian to have contact with the child.
For more information or to set up a free consultation, please contact us.