Ever since Jane and her husband, John, broached the topic of divorce, she had begun to feel uneasy. She knew that she would need to contend with the topic of child access. She knew that she did not want to meet her husband, if possible, because of the painful memories they had. But she knew, also, that he had a right to see his children. Her husband would want to spend time with his kids. Jane knew. But Jane felt conflicted about it.
This is not a hypothetical situation. Access to children is a real problem for couples getting divorced.
Angelina Jolie was reportedly seeking sole custody over her children. She wanted to block Brad Pitt’s access to their children. In response, Brad Pitt obtained a court order to be able to call or text his children directly.
Children and their importance to us
For many people, their children are their lives. If you ask whether they could accept never seeing their children again, they might go mad. Their child is a part of them, and carries their DNA. How could they forget seeing their child growing up, first as a baby, then a toddler, and then a young teenager?
And so, in a divorce, it is almost expected that a party will be upset if they are cut off from their children forever.
But sometimes, it’s not forever. Sometimes the other party will propose very unfair terms of access. “After the divorce,” the lawyer’s letter might say, “you will get to see your child once a month. For one hour. And if you’re late by ten minutes, the meeting is called off until the following month.” (That would be a very unfair and unpalatable proposition.)
Most times, young children will follow their mothers. And so, fathers will be the ones asking for the right to spend time with their children. Under the law, this is called access to children.
Access to one’s children is important. It is a chance for the father (if the mother has custody) to bond with his children. To make his presence felt in his children’s lives. To see them growing up and interact with them. And to raise them in whatever small way he can, even though he and their mother have gone their separate ways.
Children need to spend time with parents, too.
Though divorce is painful, the parties don’t need to purposely hurt each other.
But in some cases, it happens. A wife that finds out that her husband has been having an affair with the secretary might go all out to punish her husband… and that might mean keeping the kids away from the husband.
In such a scenario, the wife should think of who will be hurt. Yes, she will be able to sense her ex-husband’s disappointment. She will be able to taunt him. She will be able to make him upset at will, just by keeping the children away. But, she should also think: How will this impact her children? Does barring a father from his children also mean barring the children from their father? And how do the children feel about a permanent bar from seeing their father?
(Hint: Unless the father has been a very bad man, the children still need to see their father.)
The legal right of a parent to have access to his children
The concept of “access” ties closely to the concept of custody. We discuss custody elsewhere on this site. Suffice to say, “custody” can be described as the right to take care of a child, and have the child stay with you.
So when the ex-wife has custody of the children, it means that the children will stay with the ex-wife.
But this also means that the other party, i.e. the ex-husband, will not get custody of the children.
The frequency of the access is decided by the family court.
So, to all the fathers out there, don’t despair if you are facing a divorce. You can apply for the right to access to your children, even if your wife gets full custody of the children.
Schedule for child access?
If the divorce is uncontested, it will be good for the parties to discuss a schedule for access to the children.
The parties need to decide on a schedule that is acceptable to both of them, so that the father can see his children.
What would be good for the children?
When we say “good”, we mean good for the children. We mean that arrangements need to be put in place that benefit the children.
The parties will no longer be husband and wife, but their roles as father and mother can never change.
Not even if one party were to remarry, and have a new spouse. Even a stepmother or a stepfather cannot replace the child’s original parent entirely.
A child might grow up thinking, “Why do other people have time with their fathers, and I don’t have a father?”
Think more rationally.
Try to be fair.
Even if your ex-spouse had an affair, he should be allowed to spend time with his children. Because it affects them, as much as it impacts him.
But you should be wise as well. If your ex-spouse exhibits signs of mental instability, it might be better to err on the side of caution.
In such a case, the presence of a third party (e.g. a family member) might lessen the risk of something going wrong.
The contents of this article should not be treated as legal advice. They are provided to you as a form of general information. If you need advice, please meet with a lawyer. We handle family law matters.
Incidentally, if you’re contemplating divorce, you should read about the two year rule for divorces.