The information provided in this brochure is of a general nature and is not intended to be taken as the giving of an opinion by the law firm of Murphy Collette Murphy or any of its members. Specific advice should be sought on particular situations from your lawyer. © 1994 -2007 Henry J. Murphy

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Custody and access in New Brunswick is governed by three acts:

• Divorce Act
• Family Services Act
• Judicature Act

There are three different types of custody:

• Sole custody
• Joint Legal Custody
• Joint Physical Custody

Sole custody of a child means that the parent with custody maintains the primary place of residence for the child. That parent also makes the day to day decisions on issues that affect the child.

Joint Legal Custody signifies that both parties have an equal voice in making decisions involving the education, religious training, discipline, medical care and other matters of major significance affecting the child's welfare. Usually however one spouse is designated as having physical care and primary control over the child.

Joint Physical Custody refers to a shared living arrangement with both parents. Each also has the right and obligation to provide a home for the child and to make the day to day decisions required during the time the child is actually with each parent. Joint Physical Custody may be, but need not be, shared physical custody on a 50/50 basis.

Joint Custody Orders will only be granted where the parties are able to get along and cooperate with one another.

Sole custody by one parent is usually subject to access rights of the non-custodial parent. Access is usually granted to the non-custodial parent unless it can be shown that this is not in the best interest of the child. This is the paramount issue in determining any issues involving custody or access of children. "Best interest of the child" are defined in our Family Services Act as follows:

"best interest of child" means the best interests of the child under the circumstances taking into consideration

(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;

(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;

(c) the effect upon the child of any disruption of the child's sense of continuity;

(d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child;

(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;

(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and

(g) the child's cultural and religious heritage.

Access can be supervised, unsupervised, structured or flexible. It can be structured so that the parent knows exactly which days throughout the year the parent will have access or it can be flexible so that the parent just has to let the custodial parent know within a reasonable time when he or she would like to see the child. This again depends on the ability of the parents to cooperate. If parents cannot cooperate a specific schedule for access is usually imposed. It is important to remember that even after a Court Order has been granted respecting custody and access, this issue is never closed. Parties are always able to take this issue back to the Court should there be a material change in circumstances. One should bear in mind that the paramount factor in making or varying an order will always be what is in the best interest of the child.

© 1996, 2001, 2007 Henry J. Murphy