Child Custody in BC
What is Child Custody?
“Custody” refers to the day-to-day care of a child and with whom the child resides. Note that this is different from guardianship, which refers to parental rights and obligations in regard to a child.
People also sometimes confuse custody and access, however these are not the same thing. Access is the time a parent who is not the primary caregiver spends with the child. Having custody means you decide how a child is raised, whereas access only refers to time spent with a child. If a parent has access but not custody, they are still entitled to knowledge of the child’s health, wellbeing, education, etc. but they do not have the right to make decisions concerning these matters.
If you have custody of a child, that means that you have the right and responsibility to make decisions regarding the child and the child lives with you at least some of the time. When a parent or guardian has custody of a child, they have the right to:
- Decide where the child lives.
- Decide what religious/cultural upbringing the child is exposed to.
- Decide where the child goes to school.
- Decide what activities the child participates in.
- Apply for licenses and passports on behalf of the child.
Different Types of Custody
Most commonly, separated couples settle on an agreement where they both have custody of their child, but there are a few different types of custody arrangements to consider.
Sole custody: when a child lives with one parent (or guardian) all or most of the time and that parent is legally responsible for all decisions regarding the child.
Joint custody: child can reside part time with each parent or primarily with one parent, but both parents have equal say in decisions that affect the child and take equal responsibility for the child’s safety and wellbeing.
Shared custody: a type of joint custody where the child spends at least 40% of the time living with each parent.
Split custody: when a couple have multiple children and one or some of the children reside with one parent while the other child or children live with the other parent.
What is a Custody Agreement?
A custody 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 the following:
- 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 will spend 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 always be changed if there is 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 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, counsellor, 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. Contact us for more information on how we can help you.