Overnight Access for Young Children

If you are being denied overnight access to your infant child, do not assume that this is correct, just, fair, or in your infant’s best interests. Establishing strong bonds with your young child from the outset is important in the eyes of some judges. Here are some cases from the law reports that address the issue of access for young children. Remember though that every case is different. How the cases below might influence your personal situation is a matter that requires knowledgeable legal assistance. But the point here is not to give up just because your child is very young.

Age of Child

Name of Case and Citation

Nature of Access

3 months

Lygouriatis v. Gohm, 2006 CarswellSask 601, 2006 SKQB 448, [2006] W.D.F.L. 3732, [2006] W.D.F.L. 3742, [2006] W.D.F.L. 3731, [2006] W.D.F.L. 3745, 152 A.C.W.S. (3d) 272, 288 Sask. R. 54, 33 R.F.L. (6th) 354 (Sask. Q.B.).

  • Parties met in 2004, had turbulent relationship, and had child, L, in July 2006 —parties cohabited from February 2006 to separation just weeks after L's birth — Following separation, L remained in mother's primary care and father had some access visits with L
  • Interim joint custody of L was ordered, with mother's home as L's primary residence — Father was to have alternating weekly access to L, with three evenings each week for first week and two evenings per week and one overnight stay per week on second week
  • Mother's view that L, who was three months old, was not ready for overnight visits away from home, was without basis

7 months

T. (M.) v. G. (M.), 2010 CarswellNS 142, 2010 NSSC 89 (N.S. S.C.).

  • Mother got pregnant during parties' brief relationship — Parties both used illicit drugs during relationship — Mother ceased drug use when she found out she was pregnant — Father underwent drug rehabilitation — Father was employed and in steady relationship — Child was born after parties separated — Parties lived five hours' drive from each other
  • Father will have access from approximately 2 p.m. on day one until 11 a.m. on day two for at least six visits
  • After at least four overnight visits have been completed, father will have access every second weekend from Friday at 1 p.m. until Sunday at 1 p.m.

9 months

S. (C.M.) v. S. (M.R.J.), 2009 CarswellYukon 39, 2009 YKSC 32, [2009] W.D.F.L. 3091 (Y.T. S.C.).

  • The child will reside with the father for one week, and the mother will have access to the child on Wednesday and Saturday evenings of that week between 6 p.m. and 8:30 p.m. The child will then reside with the mother the following week, and the father will similarly have access to the child on Wednesday and Saturday evenings. The schedule will continue on this alternating basis, unless the parties otherwise agree in writing, or the court orders otherwise.

9 months

Szczecina v. Piatek, 2003 CarswellOnt 1327 (Ont. S.C.J.).

  • Father had previously been granted custody
  • Mother will have access alternate weekends, from Fridays at noon to Mondays at noon

A. 12 months
B. 3 years

Cooper v. Cooper, 2002 CarswellSask 223, 2002 SKQB 151 (Sask. Q.B.).

  • With respect to 1 year old, every second weekend from Thursday afternoon to no later than 6:00 p.m. Friday, and again from Saturday afternoon to no later than 6:00 p.m. Sunday
  • With respect to 3 year old, every second weekend from Thursday afternoon to no later that 6:00 p.m. Sunday unless the Monday shall be a statutory holiday in which event access will continue to the Monday

13 months

Baird v. Webb, 2002 CarswellSask 798, 2002 SKQB 518, 228 Sask. R. 40 (Sask. Q.B.).

  • Parents live three hour drive from each other
  • Access should be from Saturday morning to Sunday evening twice a month. If the visits go well, child's time with his father should be extended, perhaps commencing on Friday.

17 months

Lucas v. Wilcox, 2004 CarswellSask 665, 2004 SKQB 393 (Sask. Q.B.).

  • Each party shall parent the child for a period of one week with the transfer time to be each Sunday at 7:00 p.m.

18 months

Marsden v. Murphy, 2007 CarswellAlta 587, 2007 ABQB 294, [2007] W.D.F.L. 2942, [2007] A.W.L.D. 2630 (Alta. Q.B.).

  • The father immediately receives parenting time with the child every three out of every four weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday, to be extended to 6:00 p.m. Monday on long weekends. Father also has overnight access to the child on the Wednesday of the week that he is without weekend access. He will have access on that Wednesday from 4:00 p.m. to the following morning.
  • The father should continue to have parenting time with the child after September 1st (when the mother returns to school) on the same basis of every three out of every four weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday (extended to 6:00 p.m. Monday on long weekends); and mid-week Wednesday access on that weekend that the father does not have parenting time from 6:00 p.m. to the next morning.

21 months

J. (D.B.) v. J. (L.A.), 2005 CarswellYukon 103, 2005 YKSC 65, [2006] B.C.W.L.D. 2458, [2006] B.C.W.L.D. 2454, [2006] W.D.F.L. 1538, [2006] W.D.F.L. 1530 (Y.T. S.C.)

  • Short term marriage was rife with conflict which escalated into physical confrontations — Following separation, father's access to child was problematic, resulting from his having left family home, having no fixed address and no telephone or cell phone — In recent period father exercised regular access visits – At point when father's relationship with child showed improvement, proposed move would considerably reduce contact between father and child and was not in child's best interests
  • The father is granted interim reasonable unsupervised access as follows:
    • On Tuesday, Wednesday, Thursday, between 9:00 a.m. and 1:00 p.m.
    • Overnight at his residence from 4:00 p.m. Friday to 1:00 p.m. Saturday.

21 months

Schmidt v. Haley, 2004 CarswellOnt 1149 (Ont. S.C.J.).

  • Each Wednesday the father shall have the child from 4.30 p.m. until Thursday at 8.30 a.m.
  • Alternate Fridays from 4.30 p.m. until Sunday at 10.00 a.m.
  • Alternate Fridays from 4.30 a.m. until Saturday at 11.00a.m.

27 months

Heuss v. Surkos, 2004 CarswellOnt 3517 (Ont. C.J.).

  • Mother had sole custody and father had specific non-overnight access two afternoons a week and alternate Sundays — Both mother and father were good parents — Mother had shown flexibility with respect to access arrangements, however father had acted in immature and inflexible manner
  • Conditions were imposed in order to ease child into overnight access — When child commenced school holiday access schedule was to be implemented — Provisions were also made for father to take child to United States on vacation to visit his family

See:
Warshak, Richard A.: Blanket Restrictions: Overnight Contact Between Parents and Young Children, Family and Conciliation Courts Review, Vol. 38, No. 4, October 2000, pages 422-445. [http://www.warshak.com/publications/resources-purchase.html]