The federal Divorce Act still uses the terms custody and access but in British Columbia ("BC"), the provincial Family Law Act ("FLA") no longer uses the terms custody and access. Instead, the FLA talks about parents having Parenting Responsibilities (which is the decision-making authority) and Parenting Time which is where the child might reside.
Child psychologists emphasize the benefit to the child that both parents are involved in the child's life and upbringing. It is preferable that both parents have Parenting Responsibilities, as well as parenting time, with their children and that's typically the preference of the courts unless there is violence or another risk to the child. The idea is a simple one: each child and parent has the right to develop their relationship. Barring any serious issues like abuse or neglect, if both parents are found to be "Guardians" as defined by the FLA then both parents can have Parenting Responsibilities and Parenting Time. The focus of the FLA is on the responsibilities not rights of parents, and the rights of the child not the parents.
At the SEA TO SKY LAW GROUP, our child custody lawyer in British Columbia will thoroughly review your case, listen to your concerns and preferences, and outline the best course of action for you. We know you have your child's best interests at heart. To that end, we will make every effort to attain the child custody arrangement best for you and your child. Contact us online or at 778728020 to schedule a FREE 15 minute introduction of solutions.
Child Custody in British Columbia
When two parents are no longer together, one of the most important matters to be decided is who will have custody of their child. In most Provinces, there are two different types of custody that the court must consider: legal custody and physical custody.
Legal Custody
Legal custody is not related to whom the child lives with. Instead, the parent with legal custody has the legal right to make important life decisions for the child. For example, a parent with legal custody will decide where the child attends school, the child's religion (if any), and the type of healthcare they will receive. Legal custody can be joint (both parents share decision-making) or sole (one parent has the authority to make decisions). Typically, both parents share legal custody, though in many instances it is not practical nor preferable given the circumstances.
In British Columbia, you have the term legal custody replaced with the term Parenting Responsibilities. The federal Divorce Act in Canada still uses the term custody.
Physical Custody
Physical custody concerns where the child resides. It may be awarded solely to one parent or shared jointly between parents. A parenting plan establishes when and where the child resides.
In British Columbia, the Family Law Act (FLA) uses the term Parenting Time for physical custody.
Other Types of Child Custody
Child custody can be confusing for some people because there are many different types and terms to describe it. Aside from legal and physical custody, below are some of the most common terms used when discussing child custody.
- Joint Custody. Joint custody involves both legal and/or physical custody being shared by both parents. Parents may have joint legal custody, joint physical custody, or both. It does not necessarily mean that the child spends an equal amount of time with each parent.
- Sole Custody. Sole custody means that one parent has exclusive legal and/or physical custody rights. The noncustodial parent may still have visitation rights, but they do not have the primary decision-making authority or residence.
- Primary Custodial Parent. In cases of joint physical custody, there might be a primary custodial parent, meaning the child spends a significant amount of time with that parent, often more than 50% of the time.
- Noncustodial Parent. The noncustodial parent is the parent with whom the child does not primarily reside. This parent typically has visitation rights and may be obligated to pay child support.
- Visitation or Parenting Time. Visitation in some jurisdictions is also referred to as parenting time, which is the schedule that outlines when the noncustodial parent has access to the child. The specifics can vary and may include weekends, holidays, and extended periods during school breaks. Visitation also refers to situations where a parent may or may not have legal custody but does not have physical custody and can only visit with the child (sometimes requiring supervised visits) at certain times as outlined by a court order.
- Split Custody. In cases of multiple children, split custody may occur where each parent is granted primary physical custody of at least one child. This arrangement is not common and is generally used when it is deemed in the best interests of the children.
- Bird's Nest Custody. This is another uncommon arrangement. It occurs when the child remains in one home, and the parents take turns living in that home with the child. The non-residential parent lives elsewhere when it's not their scheduled parenting time.
- Temporary Custody. Temporary custody may be awarded during the divorce or separation process before a final custody arrangement is determined. It is not necessarily indicative of the final custody outcome.
Child Custody Factors Courts in British Columbia Consider
Child custody decisions are complex and are made with the best interests of the child in mind. While specific factors can vary by jurisdiction, common factors that most courts take into account when determining child custody include:
- Child's Best Interests. This is the overarching principle guiding custody decisions. Courts aim to determine what arrangement will best serve the child's physical, emotional, and developmental needs.
- Parental Fitness. Courts assess each parent's physical and mental health, including any history of substance abuse, domestic violence, or criminal activity.
- Emotional Bond with Each Parent. The court may consider the emotional ties between each parent and the child and the ability of each parent to provide a stable and loving environment.
- Child's Age and Developmental Needs. The age, sex, and developmental stage of the child are taken into account. Younger children may have different needs than older children, and custody arrangements may be adjusted accordingly.
- Stability and Continuity. Courts often favor maintaining stability in the child's life. They may consider factors such as the child's school, community, and established routines.
- Parental Cooperation. A willingness and ability of each parent to encourage and facilitate a positive and ongoing relationship between the child and the other parent may be considered.
- Parental Capacity to Provide. The court assesses each parent's ability to provide for the child's physical, emotional, and educational needs, including factors such as housing, nutrition, and educational support.
- Geographic Proximity. The proximity of each parent's residence to the other can be a factor. Courts may consider how easy it is for the child to maintain relationships with both parents if they live in different locations.
- Criminal History. Any history of criminal activity, especially if it poses a risk to the child, may be taken into account.
- Wishes of the Child. Depending on the child's age and maturity, the court may consider the child's preferences regarding custody arrangements. However, the weight given to the child's wishes varies by jurisdiction and the child's age.
- Parental Involvement. The court may assess the level of involvement each parent has had in the child's life, including participation in school activities, healthcare decisions, and general parenting responsibilities.
These factors are not exhaustive, and the weight given to each factor can vary depending on the specific circumstances of the case and the laws of the jurisdiction involved. Additionally, custody decisions can be influenced by the unique details of each family's situation. Ultimately, if a matter affects the child, the court will likely consider it when awarding custody, even if it is not one of the factors listed above.
Our family law lawyer in British Columbia will provide specific guidance based on the relevant laws in your jurisdiction.
Parent Plans and Child Custody in Metro Vancouver
Once child custody has been determined, unless one parent has sole custody, most jurisdictions request the parties enter into a parenting plan. A parenting plan lays out what is expected of each parent to provide the child with the physical and mental stability they need to prosper. It can address everything from where a child lives, to the religion they will be exposed to.
A parent plan differs from a parent order in that a parent order is enforceable by the court. The parent plan is an agreement the parties reach together, often with the help of mediation.
Unfit Parents and Child Custody in British Columbia
When a court reviews a case and determines that a parent is unfit, it is likely it will award custody to another party, and the court may allow the unfit parent supervised visitation. The court may also order the unfit parent to undergo counseling and parenting classes if they want to continue to have a relationship with their child.
While it is not impossible in most jurisdictions for an unfit parent to later regain custody of their child, it is not an easy feat as they must prove to the court the issues that deemed them unfit have been completely resolved.
Contact a Child Custody Lawyer in Metro Vancouver Today
If you are facing a child custody issue, make certain your rights are protected by hiring our family law lawyer in British Columbia. At the SEA TO SKY LAW GROUP, we know how to handle child custody matters. Contact us today by using our online form or calling us directly at 778728020 to schedule a FREE 15 minute introduction of solutions.
