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#Frequently Asked Questions About Custody - Access

1. What do the words ‘custody’ and ‘access’ mean?

Custody is the term used to describe where the children live, and who makes decision for or about the children.

2. What does ‘best interests of the child’ mean?

This is the test that the court uses to make decisions about custody of and access with children, or parenting arrangements of any kind, where the children s needs and well-being are always the most important factors. The judge must decide what is best for the children, not what is best for the parents.

In February 2013, Nova Scotia s Maintenance and Custody Act was changed. The Act now includes a list of factors that judges must consider when making decisions about the best interests of a child. Judges will consider all relevant circumstances they are not limited to considering only the factors on the list.

The factors that judges must consider are:

(a) the child s physical, emotional, social and educational needs, including the child s need for stability and safety, taking into account the child s age and stage of development;

(b) each parent s or guardian s willingness to support the development and maintenance of the child s relationship with the other parent or guardian;

(c) the history of care for the child, having regard to the child s physical, emotional, social and educational needs;

(d) the plans proposed for the child s care and upbringing, having regard to the child s physical, emotional, social and educational needs;

(e) the child s cultural, linguistic, religious and spiritual upbringing and heritage;

(f) the child s views and preferences, if the court considers it necessary and appropriate to [gather this information] given the child s age and stage of development and if the views and preferences can reasonably be [gathered];

(g) the nature, strength and stability of the relationship between the child and each parent or guardian;

(h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child s life;

(i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-operate on issues affecting the child; and

(j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on

(i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and

(ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person.

On September 1, 2014, the following section was added to the Maintenance and Custody Act. This section says what judges are to consider when determining the best interests of the child when a grandparent has made an application for access with the child:

(6A) In determining the best interests of the child on an application for access and visiting privileges by a grandparent, the court shall also consider:

(a) when appropriate, the willingness of each parent or guardian to facilitate access by and visiting with the grandparent; and

(b) the necessity of making an order to facilitate access and visiting between the child and the grandparent.