La loi vos droits

Parents - Custody and Access Rights

The Custodial Parent's Rights and Obligations

You were granted custody of your child after you and your ex-spouse separated. Your ex-spouse has visiting rights and pays you child support.

But life has its ups and downs: your ex-spouse often complains that you don’t consult him. He says he has a right to give input about decisions involving your child. As for you, you criticize him for not respecting the terms of his visiting rights and for interfering in the daily decisions you make regarding your child.

In this Infosheet, Éducaloi explains the rights and obligations of the parent with custody.

As the parent with custody, can I make all the decisions regarding my child?

No. It is important to remember that both parents exercise parental authority over their child, even after they separate. See our Infosheet Parental Authority   (http://www.educaloi.qc.ca/en/loi/parents/151/)for more information.

The parent with custody must therefore consult the other parent about important decisions involving the child, including these decisions:

• schooling
  
• medical care
  
• religious instruction

However, since your child lives with you, you are the one exercising parental authority on a daily basis. You are allowed to make decisions by yourself about day-to-day things such as food, the choice of a daycare, clothing, bedtime, etc.

If the other parent does not agree with a decision about something he considers important, he can ask the courts to intervene.

Some decisions involve major expenses: private school, orthodontic treatment, sports, etc. If you make a decision that involves a lot of money without first consulting the other parent, you might have to pay the full amount on your own.

Do I need my ex-spouse's permission if I want to move?

You do not need your ex-spouse’s permission to move to a new home unless this affects his rights to have access to the children. Of course, you must tell him your new address as soon as possible.

If the move affects the other parent’s rights to have contact with the children, you should discuss the move with him prior to moving. If he objects, you will have to ask a court for permission to relocate with the child.

For a court to get involved, you must show that the move of the parent with custody is an important change in the child’s situation. Once you show this, the court will evaluate the situation and make a decision in your child’s best interests. The court will consider these factors, among others:

• your previous custody agreement
  
• your reasons for moving
  
• the probability the child will adapt to her new surroundings
  
• how attached she is to her current school setting
  
• how the move will affect the other parent’s visiting rights
  
• the current relationship between the child and the parent who does not have custody
  
• any negative effects that a change in custody could have on the child
  
• the child’s wishes

If the court allows you to keep custody despite the move, your ex-spouse’s visiting rights will be adjusted in light of the new situation. For example, access to the children could be less frequent, but for longer periods of time.

The court will also decide who will pay the child’s travel expenses. The court might decide that the relocating parent will have to pay them, if this parent is financially able to do so.

My child no longer wants to visit my ex-spouse? What should I do?

As a parent, you must encourage contact between your child and the other parent. If your child refuses to see the other parent, you must find out the reasons and see if the decision is really based a valid reason.

If the child has valid reasons for not wanting to see the other parent, a court will review the reasons behind the child’s refusal. The child may fear the other parent or not have confidence in that parent. A child may also fear the other parent’s “loss of control” or “loss of temper”. If the child has a good reason not to see the other parent, this wish should be respected.

All decisions regarding children must be taken in their best interests. The need to encourage contact with the other parent must be compatible with the child’s best interests.

A child’s wishes might be taken into consideration by the court. Between the ages of eight and 11, children’s wishes will be strongly considered. For children over 12 years of age, their wishes will be a determining factor.

It is important that children have a sense of security and peace of mind in their daily lives. Sometimes, it is in a child’s best interests not to give one of the parents access to the children.

Sometimes, despite all your efforts, your child might refuse to see the other parent. For example, the other parent might have an alcohol or drug problem, behave violently, or often leave the child alone. In these situations, you can ask a court to suspend or cancel the other parent’s visiting rights, or request that a third person supervise the visits. The court can also recommend that the other parent attend therapy, and even order it if that parent agrees. (A court cannot order it without the agreement of the person involved.)

For more information, see the Infosheet Custody and the Child’s Wishes  (http://www.educaloi.qc.ca/en/loi/parents/207/).

What is "parental alienation"?

Remember that the parent with custody must encourage the child’s relationship with the other parent.

Unfortunately, some parents are so angry with their ex-spouses that, consciously or not, they destroy the reputation of the other parent in the child’s eyes. They put distance between the child and the other parent, or even eliminate the other parent from the child’s life altogether. This is called “parental alienation”.

The courts can take various steps to fix these situations, including increased visiting rights, shared custody, family mediation or therapy. They can also remove custody from the parent at fault and give it to the other parent.

For example: Let’s say that Judith left Peter and left their son in Peter’s custody. Peter has not stopped criticizing Judith in front of their son. Peter is uncompromising and refuses to let Judith have the child if she is even five minutes late for an outing. Peter does not let Judith talk on the phone with their son. Peter went so far as to file a complaint of sexual abuse that is not true. The child is now repeating what his father says about his mother and refuses to see her. Judith can ask a court to give her custody of her son before her relationship with him is damaged beyond repair.

How long does a child custody order last?

As long as a child is a minor (under 18 years old) and there is no change in the child’s or the parents’ situation, the custody arrangement will not be changed.

But if there is an important change in the circumstances, the parent without custody can ask a court for sole or shared custody of the child.

We no longer refer to “custody” once a child reaches the age of majority (18 years old). An adult child can choose where he wants to live, including whether to live alone or with someone other than his parents.

For example, let’s say that Claudine has had custody of Xavier since she separated from her ex-spouse seven years ago. Xavier has just turned 14 and he is going through a difficult time. He is even having serious problems in school. Despite Claudine’s best efforts, her son’s behaviour is not improving. Xavier’s father has always exercised his visiting rights and enjoys an excellent relationship with Xavier. Xavier wants to live with his father, even though he knows he will be strict and make him study hard. Xavier’s father and Claudine can agree to change custody, or Xavier’s father can ask a court to change the custody order.

Can I change my child's name if I have custody?

No. Having custody doesn’t give the right to change a child’s name.

However, a parent can ask for a change in these situations:

1. If a parent can prove that the other parent abandoned the child.

2. After a separation or divorce, if a child only has one parent’s family name on the birth certificate, the other parent can add her family name, if it is in the child’s best interests. To learn more, see the Infosheet Changing Your Name  (http://www.educaloi.qc.ca/en/loi/citizens/54/).

3. A parent who has asked for parental authority to be taken away from the other parent can ask for the child’s name to be changed. To learn more, see the Infosheet Parental Authority  (http://www.educaloi.qc.ca/en/loi/parents/151/).

Requests to change a family name for a child under 18 must be made to the registrar of civil status. A child over 14 must be notified of this request and is the only person who can oppose the name change. The other parent must also be notified but cannot object to the addition of the other parent’s family name.

You must make sure that the new name does not result in a ridiculous new name, as in the famous Leboeuf-Haché (minced meat) case.

Can I stop my ex-spouse from seeing our child if he does not pay child support?

Child support is completely separate from visiting rights. A child cannot be prevented from having a relationship with the other parent, even if that parent does not pay child support.

If your ex-spouse owes child support and is not paying, there are other solutions, such as having that person’s passport taken away or asking a court to find that person in contempt of court. To learn more, the InfosheetCollecting Support Payments in Québec  (http://www.educaloi.qc.ca/en/loi/parents/204/).

Will I lose custody of my child if I enter into a new relationship?

As a general rule, the only time that a new relationship might be a reason to change a custody arrangement is when the addition of the new partner has a very negative effect on the child’s well-being.

Remember too that the parent with custody must continue to exercise parental authority. It is up to her, and not the new partner, to make decisions regarding the child’s welfare jointly with the other parent.

As of what age can I leave my child home alone?

The law does not set an age at which a child can be left alone. The law only says that, in general, a parent must supervise a child and that this supervision can be delegated to another person.

As in all decisions regarding children, a decision to leave a child alone must respect the child’s best interests. For example, encouraging the child’s independence or building trust could be a valid reason. Being unable to find a babysitter or refusing to ask the other parent to stay with child might not be valid reasons.

When parents leave a child alone, they must make sure that the child is safe, that his needs are met and that they are not away too long given the child’s age and level of maturity. Otherwise, laws meant to protect children could come into play: the Youth Protection Act, a law dealing with the security and development of children, and the Criminal Code of Canada, which makes child abandonment a crime.

Also, parents are responsible for any harm a child causes to someone (a neighbour, for example) while the parents are away. In fact, the Civil Code of Quebec says that if a child causes harm, the parents can be held responsible unless they prove that they properly supervised, cared for and educated the child. For more information, see the Infosheet Parents’ Responsibility for Acts of Children under 18  (http://www.educaloi.qc.ca/en/loi/parents/126/).