27/09/2019 0 Comments
Understanding BC Child Custody and Access
When a marriage or common-law relationship comes to an end and children are involved – whether the children were born of the relationship or are from a previous relationship – it becomes essential for the exes to understand the law of access and child custody BC.
A full overview of the law respecting post-separation parenting arrangements and child custody BC is outside of the scope of this post as it is quite a complex area of family law. The purpose of this post is to review some basics regarding child access and child custody BC. If you have questions about how the law applies to your family, contact the Bronson Jones & Company LLP team of BC child custody lawyers today at 1-855-852-5100 to schedule a free initial consultation.
Top consideration in BC child custody and access decisions
The top consideration for any court order or negotiated agreement respecting parenting, access, or child custody BC is whether it is in the best interests of the child. The safety and physical and emotional well-being of the child are always the top priority when it comes to parenting arrangements, guardianship, and contact with the child. Factors that are considered in deciding whether an arrangement is in the best interests of the child include who looked after the child in the past and how well they looked after the child, what the child thinks or wants (unless it is not appropriate to consider this, e.g. if the child is very young), and the impact of any family violence on the child's safety, security or well-being, including whether the violence is directed toward the child or another family member.
Laws and language that apply to access and child custody BC
This is an area that causes confusion for parents trying to navigate family law on separation or divorce. The federal Divorce Act and our provincial law (BC’s Family Law Act) use different language when it comes to parenting. The federal Divorce Act applies only to married spouses while BC’s Family Law Act applies to married spouse, unmarried (i.e., common law) spouses, and people who were not in a relationship but had a child together. Under the Divorce Act, orders are made for “custody” and “access”, whereas BC’s Family Law Act instead focuses on the parents’ responsibilities for their children.
Another key difference is that while both the federal Divorce Act and BC’s Family Law Act emphasize the child's best interests, the Divorce Act contains the “maximum contact principle” (that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact), while BC’s Family Law Act contains a presumption that in making parenting arrangements, no particular arrangement is presumed to be in the best interests of a child.
Parenting time, guardianship and parental responsibilities
Most BC judges and lawyers use the language of the provincial Family Law Act (i.e., parenting time, guardianship, and parental responsibilities) and that the federal Legislature is currently considering changes to the Divorce Act that would bring it more in line with BC’s parenting language. As such, the rest of this post will highlight some of the key principles under BC child custody law:
• Under BC’s Family Law Act “guardians” are typically the parents of a child; this is because while a child’s parents are living together and after they separate, each parent is presumed to be the child’s guardian.
• The time a guardian spends with a child is called “parenting time” while “contact” is the term used to describe the time that someone who is not a guardian has with a child. A parent who is not a guardian may have contact. Grandparents or other people who have an important relationship with the child might also have contact.
• Generally speaking, a person who is a “guardian” has parental responsibilities for a child. During a guardian’s parenting time, the guardian is responsible for the care of the child and for making decisions for and about day-to-day matters involving the child.
• The arrangements for parental responsibilities and parenting time are known as “parenting arrangements.”
Child custody BC: How to get a parenting arrangement in place
There are two ways to make a parenting arrangement: (1) by negotiating an agreement, or (2) by court order. The big advantage of negotiating an agreement is that it gives the parents more control in deciding on an arrangement that is in the child’s best interest. If a child’s guardians are able to reach an agreement about parental responsibilities and parenting time, it is strongly recommended that they formalize it by signing a written separation agreement. If the child’s guardians are not willing or able to agree, they will have to ask the court to decide for them. As discussed above, the only concern of the court will be the best interest of the child; because the best interests of the child always prevail, what a court orders may not be what the parents’ wanted or preferred.
Need advice on child custody BC?
This post reviewed some of the basics regarding child access and child custody BC. There are many factors and issues when it comes to child custody BC: Where will the child live and with whom? Who will make the decisions for the child? What happens if your ex doesn’t follow the parenting agreement you made? If you have questions about how the law applies to your family, contact the Bronson Jones & Company LLP team of BC child custody lawyers today at 1-855-852-5100 to schedule a free initial consultation.