Family Lawyers Tell You What Expect When Determining a Child Custody Arrangement in BC

Paine Edmonds - Wednesday, October 10, 2018

Going through the divorce or separation process can be an emotional and confusing period of time, especially in regards to the children that may be involved. You might be wondering which parent the children will stay with or whether they will have to move. How will you determine how much time you get to spend with your child? Based on your relationship with the other parent, you might suspect that the other parent will attempt to obtain sole custody of the children or perhaps you are interested in being awarded sole custody. These are all valid concerns which we will explore in detail below.

Types of Custody

Before making any decisions, you should think about what type of custody arrangement you are most interested in for the benefit of the child. There are three types of custody arrangements that you may adopt with the other parent or that a court may order:

  1. Sole custody: where one parent is legally responsible for the care and decisions for the child.
  2. Joint custody: where both parents share the responsibility for care and decision-making for the child.
  3. Split custody: where there are at least two children and they are split up among the parents.

Custody Agreement

There are two main ways to determine the custody arrangement of your children: by application to the court or by a custody agreement. Depending upon the relationship and willingness to compromise with the other parent, you may be able to come to an agreement on the custody arrangement. You can either attempt to come to an agreement with the other parent alone or you can involve an dispute resolution professional, such as parenting coordinator, mediator, arbitrator, or the court to help you and the other parent come to an agreement. Having a lawyer represent you throughout the process will ensure that your legal interests are properly put forth.

Once the agreement is reached, it should be formalized. This means it should be in writing, signed and filed with the court which will make it as enforceable as a court order. Again, this is a role your lawyer normally takes on.

Custody by Court Application

If you cannot agree on a custody arrangement with the other parent, you can apply to the court to make a decision about custody. The court will look at the best interest of the child and award custody accordingly. The best interests of the child means the circumstances that would best protect the child physically, psychologically, emotionally and holistically.

In order to determine the arrangement that is in the best interest of the child, the court will look at the following factors:

  1. The existing custody arrangement and relationship between the child and the custodial parent;
  2. The existing access arrangement and the relationship between the child and the access parent;
  3. The desirability of maximizing contact between the child and both parents;
  4. The views of the child;
  5. The custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
  6. Disruption to the child of a change in custody;
  7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

For example, in J.K.R. v. M.C.C.H., 2010 BCSC 32 (CanLII), both parents sought an order for sole custody of their two year old son. The court found that the relationship between the parents was bitter. However, it was important to have both of parents in the child’s life. The child was living with his mother and her parents, who were able to provide additional care and support. The child would have to move if the father was granted sole custody, as he wanted. Both parties had modest financial means and the mother had a stronger parental bond with the child than the father. Ultimately the court found that for the reasons discussed above, the best interest of the child warrants an order for sole custody to the mother.

Changing a Custody Arrangement

Even if you come to a custody agreement with the other parent, the circumstances might change to a situation that no longer serves the best interest of the child. For example, in R. M. B. v. B. H. B., 2013 BCSC 148 (CanLII), the parents of the child agreed on joint custody. However, at a subsequent hearing, both parents sought sole custody. The court looked at whether the mother put the best interests of the child before her own.

The mother had a history of failing to abide by court orders and had an issue with alcoholism. When both parents did not agree on a school, the mother went ahead and enrolled the child in her school of choice. When the child lost a filling, the mother waited two weeks before taking the child to the dentist. Due to the many issues with the mother’s parenting and ability to put the child’s interests first, the court awarded sole custody to the father.

Contact Paine Edmonds LLP for Family Lawyers in Vancouver

Our family lawyers are experienced in child custody matters. Whether you want to negotiate with the other parent and come to an agreement or apply to the court for custody, we are here to help you every step of the way. While custody arrangements are not necessarily permanent, it is more efficient to get legal advice prior to making any life-changing decisions for your child. Contact us today at 1-800-669-8599 for a discussion on your options and the best interests for your child. You can also fill out a family law consultation request for a free half hour consultation with one of our family lawyers.