|
Script 142 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
If you’re thinking about separating from your spouse or have already separated, the continued parenting of your children may be your biggest concern. This script discusses custody, guardianship and access for children of legally married parents. If yours is a common-law relationship, refer to script 140 entitled “Children Born Outside Marriage” (although there is little distinction between married and unmarried parents).
How does the law view custody in today’s modern world?
The law is moving away from traditional concepts of “custody” and “access.” To help separated and divorced parents better resolve parenting disputes and care for their children, judges today focus decisions on the living arrangements for the children and how much time they will spend with each parent. Having said this, the terms “custody” and “access” are still in use.
What does “custody” mean?
Custody refers to who has the right and responsibility for making decisions about the care and welfare of the children on a daily basis. Decisions about custody are often based on who is best able to be the primary caregiver in all the circumstances. But regardless of who has custody, the child has the right to continue to have a relationship with both parents after separation.
What are the different ways to decide custody?
When both spouses live together, they share custody of their children. But once spouses separate, there are different ways that the question of custody might be settled. For example, you may move out and leave the children with your spouse, or you may move out and take the children with you. In both cases, the spouse with the children has custody of them as long as the other spouse does nothing about it. Custody might also be resolved by a written agreement between the spouses, or by going to court. Note that a court order always takes priority, so if you’re having difficulty resolving custody with your spouse or ex-spouse, you should apply to the court for a custody order.
Do you need a lawyer?
You need a lawyer if you’re seeking a custody order as part of a divorce proceeding in Supreme Court. Custody orders can also be made in Provincial (Family) Court, in which case you may not need a lawyer, because the court process is simpler and more user-friendly. If you go to Provincial Court, most communities in BC require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court.
How does the court decide the question of custody?
The court always makes its decision based on what is in the best interests of the child or children.
What factors does the court consider?
The court considers many factors relating to the child’s physical and emotional well-being and the ability of each parent to meet that child’s needs, including:
- the parent who looked after the child while the spouses lived together
- each parent’s plan for the care of the child
- the willingness of each parent to allow the child to spend time with the other parent
Financial means are not a deciding factor. And courts usually like to keep siblings together.
Can the child decide which parent they want to live with?
If the child is old enough, the judge will consider the child’s wishes when determining custody arrangements, in addition to the other factors just mentioned. The weight given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular parent, and how strongly the child feels about wanting to live with that parent. But there is no magic age at which a child has the right to decide which parent they can live with. The older the child, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.
What is sole custody?
Sole custody means that the child lives primarily with one parent and that parent has the day-to-day right and responsibility for making decisions regarding the child’s care.
What is joint custody?
Joint custody means that both parents share the responsibility for making decisions about the children. This doesn’t necessarily mean that the children live with each parent for the same amount of time. It could be that way, or the child may live mostly with one parent. A common practice is for the parents to have joint custody but for the child’s primary residence to be with one parent. A court may consider the ability of both parents to cooperate when awarding joint custody.
How is access decided?
Access or visiting rights traditionally refers to cases of sole custody and the time the non-custodial parent gets with the children. But when parents have joint custody, the question becomes one of how much time the child gets to spend with each parent, and when. Determining access or time spent with the children is settled the same way as custody – either by court order, written agreement or the way the parents themselves arrange it. It’s far better if parents can work out these arrangements themselves. But if they can’t, the court can make an order spelling out specific terms or access. In certain cases, supervised access may be ordered if the access parent poses a danger to the children or is becoming familiar with them after a long absence.
What is guardianship?
Guardianship is a separate legal concept from custody. Guardianship refers to the responsibility for making major decisions in a child’s life, and it can also be sole or joint. Under the Family Relations Act, a guardian is both guardian of the person of the child and the estate of the child. A guardian of the person of the child makes decisions involving matters like education, health care and religion. Estate guardianship means the ability to manage what the child owns, like money or property. In the case of joint guardianship, each guardian should consult with the other about the welfare of the children. If they disagree, a guardian is entitled to apply to the court for directions and an order relating to any question affecting a child. Joint guardianship usually goes hand-in-hand with joint custody, but it’s possible to have a joint guardianship arrangement where one parent has sole custody.
Should you try to mediate disputes?
Mediation is an excellent way to help parents agree on custody and access. Mediation can help avoid a bitter court action – or going to court in the first place. The provincial government has trained mediators, called Family Justice Counsellors, who don’t charge for their services and are available to help couples come to a parenting agreement. Call Enquiry BC at 604.660.2421 in Vancouver, 250.387.6121 in Victoria or 1.800.663.7867 elsewhere in BC. Just remember that an agreement drafted by a Family Justice Counsellor will have long-term consequences and may be difficult to change, so be sure to get independent legal advice before signing it. Your lawyer can also refer you to a mediator. For more information on mediation, refer to script 111.
What about “custody and access reports”?
Section 15 of the Family Relations Act allows the court to order an assessment by a psychologist of each parent’s parenting ability and their relationship with the child, before the court makes a decision about custody and access. These assessments are known as "section 15 reports” or “custody and access reports,” and they can cost at least $8,000. A report can also be prepared for free by a Family Justice Counsellor, but it may take eight months or longer.
What is “interim custody”?
If parents disagree about who should get custody, they may go to court for an interim custody order to decide things in the interim period, while they wait for the decision in the main action. An interim custody order is an important decision, because it establishes parenting arrangements, and unless there are good reasons presented later at trial to change these arrangements, courts will often continue the interim arrangements.
Is a custody/access order final?
No. It may be changed whenever there’s a significant change in circumstances (for example, if one parent wants to move away with the child) and this change justifies changing the order.
What should you do if your spouse won’t follow the order?
Get legal advice. The police don’t enforce access rights and are reluctant to enforce custodial rights. If you’re afraid your spouse is about to take your children out of the country and not bring them back, see a lawyer immediately.
Where can you get help or more information?
[updated September 2009]
Dial-A-Law© is a library of legal information that is available:
- by phone, as recorded scripts, and
- by audio and text, on the CBA BC Branch website.
To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia.
© Copyright 1983-2009 The Canadian Bar Association, British Columbia Branch
|