Divorce can happen to any family and tends to be a stressful time for all parties involved. When there are children involved in divorce proceedings, attention often centers on who will get child custody.
Let’s define what we mean by child custody…
Child custody is determining who will look after and care for a child or children after a divorce has been processed. A custody agreement will detail where the child will live, whom they will live with, and the responsibilities of the parent(s) who have custody. In Canada, when discussing child custody, courts often focus on one important factor: What is in the best interest of the child?
If you are given custody of a child, that essentially means that you are legally entitled to make decisions for that child. These decisions can range from simple day-to-day decisions such as meals, playdates, and clothing, to large issues such as choice of school, health care, or religion.
Who decides child custody?
In most cases, child custody is determined by the parents or carers of the child. Both parents will need to discuss what is best for the child and come to an agreement together that keeps the best interests of the child at heart. These conversations can be tricky to navigate and more often than not, parents hire a family lawyer to help them understand their legal rights and help negotiate an out of court agreement.
If the parents are able to make an agreement between them, they need to ensure that this is correctly and lawfully documented. If you choose to hire a family lawyer, they can also help draw this up for you and ensure that the agreement is legally binding. The benefit of having a legal document is that it will save you any trouble or heartache along the line, should any discrepancies or challenges occur.
Should the parents of a child be unable to come to a custody agreement, the decision-making will be put in the hands of the courts. A judge will actively listen to both parents arguments and make a decision based upon what is being said. The custody agreement that a judge decides is bound by law, therefore must be followed – even if one parent or both parents disagree with the decision.
This process of settling child custody in a court of law can be both costly and lengthy. We highly stress the importance of hiring a family lawyer to help parents reach an agreement between before reaching that point.
What types of child custody are there?
Sole custody is when a parent single-handedly has custody of the child. The child will live with one parent on a permanent basis and the other parent will have access or visitation rights.
When both parents are open to cooperation around the welfare of the child, joint custody can be granted. This means that visitation and residency agreements vary because both parents have custody of the child. For example, a child could live with one parent from Monday to Thursday and spend Friday through until Sunday with the other parent.
Child custody agreements vary from case to case. A common agreement is that a child spends half their time with one parent and half their time with the other. This is known as shared custody.
Split custody can be applicable when there is more than one child involved. Split custody involves one or more children living with one parent, and then child or children residing with the other parent. Split custody is more common when there are older children involved.
If a parent isn’t granted sole or joint custody, they can arrange to visit the child. This is commonly known as access. For example, a parent is given sole custody of a child, the other parent has access e.g. visits every Saturday morning.
It’s worth noting that federal and provincial laws use different terminology for child custody. In 2013, the Family Law Act (provincial, BC) was reformed to move away from terminology that implied ‘winning or losing’, for example, “custody” and “access”. In BC, depending on your marital status, you may find yourself negotiating child custody using terminology such as “guardianship” and “parental responsibilities”. More information can be found on the Family Law in British Columbia website.
Child custody can be a difficult time for everyone involved. At Dreyer Davison law firm, we have 45 years experience dealing with child custody and family law. Tell us how we can help you, today.