Child Custody in BC
What is Child Custody?
The terms ‘child custody’ and ‘access’ have effectively changed to ‘parenting time arrangements.’ However, many people still think of custody and access when they think of parenting arrangements.
In that regard, ‘custody’ refers to the day-to-day care of a child and with whom the child resides. A parent who has a child equal to or more than 60% of the time may be referred to as the primary caregiver. Parents can share parenting time by a variety of parent time arrangements, including 50-50. Commonly parent-time arrangements that are 45-55% are treated as essentially equal.
The determination of what is best for the child or the children drives not just parenting time arrangements but all aspects of the child’s life, including future life decisions such as the following:
- Where after separation the child will live and with whom;
- Will a move away from the current home be required:
- Religious and cultural upbringing;
- What school the child will attend, and where;
- What activities the child will take part in;
- Who will apply for and keep the children’s passports;
Parenting time arrangements are different than guardianship. Guardianship represents a bundle of rights and obligations each parent has to the children and the other parent. A general proposition is that each parent is responsible for applying the ‘best interests’ requirement to decisions regarding the children. They also have an obligation to keep the other parent in the loop so each parent can assist with proper decision-making.
Different Types of Child Custody
Most commonly, separated couples settle on an agreement where they both have Parenting Time arrangements in place where they exclusively parent their child. Historically, the words custody were employed, and we use them and the new phrases as follows: The different parenting arrangements or different custody arrangements have included:
Sole Custody, or Primary Care:
When a child lives with one parent (or guardian), all or most of the time and that parent may have the ability to make all decisions regarding the child.
Joint Custody or Shared Parenting Arrangements:
The child can reside a set amount of time with each parent or primarily with one parent, but both parents have an equal say in decisions that affect the child and take equal responsibility for the child’s safety and wellbeing.
Shared custody is a type of joint custody or shared parenting time arrangement where the child spends at least 40% of the time living with each parent.
When a couple has multiple children and one or some of the children reside with one parent primarily while the other child or children live with the other parent.
What is a Child Custody or Parenting Time Agreement?
A custody or parenting time agreement is a legal document that defines what type of custody is in place and outlines how a child’s time is distributed between parents. Parents can agree on whatever type of custody arrangement they like as long as it puts the child’s best interests first. Often, custody agreements include:
➡ How much time a child spends living with each parent/guardian.
➡ A procedure for dealing with and avoiding conflict that may arise.
➡ Which holidays and special occasions the child spends with which parent.
➡ How often each parent is expected to have contact with the child via telephone, email, or any preferred form of communication.
➡ How the child will be transported between the parents’ homes.
Custody agreements and court orders pertaining to custody may be changed if there is a material change of circumstances. Either parent can file for adjustments to the custody plan at any time and will need to prove that a material change has occurred which merits a change in the arrangement.
How is Child Custody Determined?
The court always prioritizes the child’s best interests when making a decision about custody. Generally, the court believes that it is best for a child to spend the maximum amount of time possible with each parent unless there is a valid reason why this would not be in the child’s best interests.
In British Columbia, children have a say in their own custody to an extent. According to the Family Law Act, the child’s views regarding custody must be taken into consideration unless it would be inappropriate to take these views into account. Typically, after the age of 12, a child’s views about who should have custody over them is taken into a consideration, but it is more about the individual child’s maturity level and ability to understand the situation than about their specific age. Often, the older a child is, the more impact their wishes will have on the court’s decision.
Sometimes a psychologist, counsellor, or lawyer with specialized training is tasked with discussing custody options with the child in question and preparing a report for the court on the child’s opinions regarding their own situation.
Child’s Best Interests
When custody arrangements are being disputed, the judge sometimes requests a Needs of the Child Assessment (also known as a “Section 211 Report”) to be prepared by a professional such as a social worker, counselor, psychologist, or family justice counsellor. A Section 211 Report is a report that determines and outlines the child’s specific needs, the capacity of each parent to satisfy these needs, and the child’s wishes regarding custody.
Many factors are considered by the court when determining the child’s best interests, including:
- The child’s physical health;
- Emotional and mental wellbeing of the child;
- The child’s views;
- Any medical requirements and other special needs;
- Education of the child; and,
- The state of the relationship between the child and each parent, and other significant people in the child’s life.
When is a Person Granted Sole Custody?
Sole custody of a child may be granted to one parent or guardian in some special cases. Common reasons for sole custody include, but are not limited to:
- When one parent is deemed unfit due to addiction, mental illness, or a history of abuse.
- If one parent has abandoned their child.
- When one parent is deceased.
- If one parent is incapable of childcare due to incapacitating physical or mental illness.
At GK Thomas and Associates, we specialize in family law and have extensive experience dealing with custody agreements and disputes. We know how important your family is and we do everything possible to ensure that the child’s wellbeing is put first.