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 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).

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 the kids will spend with each parent. Having said this, the terms “custody” and “access” are still in use.

What does “custody” mean?
Having “custody” essentially means having the care and control of the children. When both spouses live together, they share custody of their kids. 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 kids 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’ll 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 in deciding custody?
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 is the traditional form of custody. If you have sole custody, your child lives with you and you make the day-to-day decisions for their care.

What is joint custody?
With a joint custody order, the parents share custody of the children. How that custody is shared will differ from case to case, depending on the circumstances. In some cases, the children may live mostly with one parent, but both parents share equally the responsibility of making major decisions regarding the kids, such as schooling, religious upbringing and the like. In other cases, the children may alternate days, weeks or months with either parent.

Most orders today are for joint custody
To meet the best interests of the child, it’s believed that children should have as much contact with both parents as possible. Sole custody orders are usually only given if one parent is completely uninvolved with the kids, lives out of the country, or is violent or abusive toward the children or other parent.

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 kids. 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 kids 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.

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 that an assessment by a psychologist be conducted 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 in a divorce, 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, the courts often will continue the interim arrangements.

Remember that a custody/access order is never final
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?

• Refer to the “Family Justice” website of the provincial Ministry of Attorney General at www.ag.gov.bc.ca/family-justice.
• Grandparents wanting information on maintaining or re-establishing ties with grandkids can call the Canadian Grandparents Rights Association at 604.689.8242

[updated October 2007]

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