In the overwhelming confusion of divorce, most couples fail to take into consideration the issue of child custody. According to Canadian law, both parents have equal rights of custody until the court decides otherwise. And in order to successfully navigate through a custody battle and convince the court to give custody to you and not your ex-spouse, you should educate yourself on the way things work.
Who Can File for Custody?
Besides the child’s biological parents, section 35 of the Family Relations Act allows relatives, grandparents, and other non-parent caregivers to file for custody in case of a divorce. However, the courts will always try to decide what’s best for the child, and in most cases, they favor biological parents. Biological parents are usually awarded custody unless they’re deemed unfit.
A Child’s Best Interest
Canadian family judges prefer joint custody with both parents involved in raising the children. Final determinations will vary by court, but judges attempt to rule in the best interests of the children. So, regardless of whether you’re getting a divorce in BC or another Canadian province, you’ll be encouraged to think of the best interests of your children and try to work together with your spouse despite the emotional elements of divorce.
Following are some of the principal factors that impact the court’s decision which could be of great help:
- The child’s overall health and emotional wellbeing
- The parents’ ability to provide for the child’s needs both emotionally and financially
- Time available to spend with the child
- The relationship each parent has with the child
- Any special needs and medical requirements the child might have
- The child’s educational needs
- If more children are involved, courts usually prefer to keep them together
Common Presumptions of the Courts
While courts use various factors to determine a child’s best interest, there are 3 rules that generally prevail in most cases:
Primary caregiver. If you can establish that you were the primary caregiver during the marriage, the law typically presumes that you’re the most suitable to care for the child in the future.
Established status quo. If the child already lived with one parent before they even file for divorce, most judges will interpret the current living arrangement as the default arrangement.
Stay at home mothers almost always gain custody of the child over working husbands. This is because courts tend to focus on the parent who is likely to be around often and provide the child with a stable living environment.
Voice of the Child
Children’s participation and views are now encouraged more than ever through judges’ interviews, “child wishes” reports, etc. Both parents and their representation should be prepared to listen, explore all options, try to work together, and communicate openly with the children in order to reach the best decision. In addition, parents should not forget that this is an extremely vulnerable time for the children. For that reason, they should make sure to communicate openly with the little ones and share some words of wisdom so that they feel loved and secure.
The child’s voice might be included at several stages during the litigation. The two most important times are during conciliation or mediation and during the preparation of custody evaluations (also called family assessments or home studies in some jurisdictions) to help aid the judge to reach a final decision. The child’s views and opinions might also be heard in the courtroom.
Any child aged 12 or older has a right to be heard in court. There are cases where a child’s wish to live with one of the parents will have a significant influence on the final decision.
Joint custody is a court order whereby custody of a child is awarded to both parties. Most couples get a court order for joint physical and legal custody since it allows both parents equal access to the child, as well as equal authority over the key decisions in the child’s life.
Couples who share joint physical custody work out visitation schedules based on the child’s needs, as well as the parents’ housing situation and work responsibilities. If the parties can’t agree on a schedule, the court will intervene. In such cases, the court will typically impose an arrangement that involves alternating weeks with each parent. In some instances, the child spends weekdays with one parent and holidays and weekends with the other. In rare instances, they might stay in the same home all the time while the parents take turns living in. This arrangement is called “bird’s nest custody” or “nesting”.
When joint custody proves to be detrimental to a child, a judge might award sole custody (also called full custody). If you are interested in getting sole custody, you should prepare yourself for a difficult battle because, as mentioned earlier, courts prefer awarding a shared one.
In order to be awarded full custody, you will need to demonstrate that your ex-spouse is unfit to parent due to one of the following reasons:
- Domestic violence
- Financial problems
- Physical or sexual abuse
- Alcoholism or drug abuse
- Mental illness
Custody can also be affected by a new live-in partner entering the mix. If this person is deemed unfit to parent, full custody might prove necessary.
In order to be able to successfully navigate through a custody battle in Canada, you should start by reading up on child custody laws in the country. You should also consider requesting an in-home custody evaluation. This evaluation helps family courts to evaluate your relationship with your child and living arrangements, which can be especially helpful when your former spouse tries to paint you in a bad light. Finally, be sure to seek legal representation and follow courtroom etiquette.