Things are changing in British Columbia for parents sharing the care of their children after divorce. Child custody and access are still the words of choice in the legal arena, but greater emphasis is being placed on parental responsibilities and parenting orders that allow parents to work together in a more peaceful manner. As things continue to shift, parents will be encouraged to think of the best interests of their children and work together in a respectful manner despite the emotional elements of divorce.
Whenever possible, parents are allowed to come to mutual agreements that determine how their children are cared for over time. When that doesn’t work out, the decisions are made by court officials and court orders are issued. A court order has more binding power than an agreement, but agreements are preferable because they are more likely to meet all needs of the children and parents involved.
Can You File for Custody?
In most cases, biological parents are favored for custody after a divorce. There are special circumstances in which any person with a valid connection to a child may file for custody, but biological parents are typically awarded custody unless they are deemed unfit. The Divorce Act is the guiding force when it comes to determining who is permitted to file for child custody. Filing under section 16(3) allows those who are not biological parents or the spouse of a parent to be considered for custody.
For separated couples still legally married or couples or who were never married, section 35 of the Family Relations Act allows biological parents, grandparents, relatives, and non-relatives to file for child custody. That may sound like a free-for-all since anyone can file for custody, but the courts will always look out for the best interests of the child. Non-relatives must have some connection to the child that would qualify them to file for custody.
The Best Interests of the Child
In the Young vs. Young case held in the Canadian Supreme Court, courts are permitted to use discretion when deciding what is in the best interest of a child. Section 24(1) of the Family Relations Act requires courts to consider all of the following when making these decisions:
- The child’s emotional well being and overall health
- The child’s special needs and medical requirements
- The opinion of the child (as applicable)
- Emotional bonds between the child and those filing for custody
- The child’s educational and training needs
- The adult’s ability to carry out the duties of guardianship and care of the child
- Every child is different, and the courts will consider the special needs of each child when making custody decisions. Each adult petitioning for custody will be analyzed in terms of their ability to meet the identified needs of the child. Unless there are special circumstances, the courts will favor the parent who served as the primary caregiver when the parents were together. The child is already accustomed to care from that parent and will typically have a tighter bond with that parent than with the other parent or other adults involved in their life.
That does not mean the primary caregiver always wins custody. Courts will also consider how willing each parent will be to making the child available to the other parent, and the plans that each parent has in place to care for the child. The location of each parent’s home will also be considered, since the courts do not wish to disrupt a child’s life by uprooting them from their school, friends, and other activities.
The courts will always do whatever possible to keep siblings together. The financial means of the parents does not typically come into play, but it may be a consideration if one parent is proven to be financially unable to care for a child.
What About Your Past?
If you are worried that issues in your past could come back to haunt you during a child custody battle, let section 16(9) of the Divorce Act put your fears to rest. Unless your past transgressions can be interpreted as a danger to the child, they are not likely to be considered in the child custody proceedings. For instance, traffic violations and petty theft ten years in the past may not be considered, but a history of physical violence or sex-related charges could be considered safety issues for the child.
What About Your Child’s Opinion?
There are cases where a child’s desire to live with one particular parent will have heavy weight in court. The courts will consider the following questions when determining how much power a child’s opinion is given in proceedings:
Why does the child want to live with a particular parent?
Is the child old enough and mature enough to make this decision?
How strongly does the child feel about living with one particular parent?
Teenagers are typically listened to quite heavily in court, but any child aged 12 or older could qualify to voice their opinion in court with heavy weight.
What About Joint Custody?
Most couples end up with a court order for joint custody, since it allows both parents equal access to the child and meets the child’s need to be cared for by both parents consistently. Joint custody simply means both parents have custody. The child still typically takes up residence with one parent.
If the parents are involved in a volatile relationship, sole custody may be awarded to the parent deemed most fit. There may be other circumstances where one parent is awarded sole custody in order to ensure safety and well being for the child.
What About Changes?
While court orders for custody are legally binding, you can file for adjustments and changes as needed. You will need to prove that some substantial change has taken place in order for your request of adjustments to be honored.
For example, if one parent has sole custody of a child and decides to move far away from the other parent, the other parent may file for the custody situation to be reconsidered. The same goes for circumstances where one parent is no longer deemed suitable for the child or is not looking out for the best interests of the child.
PLEASE NOTE that the above are general guidelines with how BC Courts handle child custody. In law, there are always exceptions and so your case may not resolve precisely per any of the outcomes set out above.