What Counts in a Custody dispute?

What a Court considers important...

The law in British Columbia differentiates between the concepts of custody and guardianship of children. Broadly speaking, custody refers more to having care of the physical person of a child on a day-to-day basis, while guardianship has more to do with having care of the legal person of the child. Parents of minor children who live together, whether married or living in a marriage-like relationship do not have to give much thought to the two concepts. Parents of minor children who are going through a separation, however, must become aware and educate themselves as to the rights and obligations that accompany having custody and guardianship of their children. A detailed explanation as to the difference between the two concepts is beyond the scope of this article, and you should consult one of the family law lawyers at MJB for specific questions. The purpose of this article is to set out the factors that courts will generally consider in a child custody/guardianship dispute.

Many parents going through a separation are able to work out compromises and make the type of arrangements that they think will work best for their children. Sometimes they can reach such agreements on their own, and other times they do so with the help of a mediator or a lawyer. There are some couples; however, who have different points of view as to what they think will work best for their children. Those couples will often seek the court’s intervention to set a custody and guardianship arrangement. The only consideration that a court will take into account when making that type of decision is the best interests of the child. Although the concept seems to be somewhat broad, there are some legislated factors, set out in the B.C. Family Relations Act, which help guide a court in coming to a decision. Those factors are:

• the health and emotional well being of the child including any special needs for care and treatment;
• if appropriate, the views of the child;
• the love, affection and similar ties that exist between the child and other persons;
• education and training for the child;
• the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

In addition to the above, a court will often assess the parents’ capacity to communicate effectively with each other regarding the children in question. Unfortunately, significant animosity and heightened emotions sometimes go hand-in-hand with a separation. Nonetheless, a Court will often take the view that separating parents ought to be able to set their differences aside, and make every possible effort to get past their challenges and jointly raise their children despite their separation. If parents do not have that ability, then it is possible that sole custody may be awarded to one parent.

A parent’s conduct will also be examined if it is relevant to child-rearing. For example, substance abuse is something that would obviously have a negative impact on a person’s ability to parent. Domestic violence will also be considered, and put the aggressor in a negative light, especially when it occurs in the presence of the children.

Separating parents must keep in mind that their particular situation, including their parenting abilities, will be assessed when the relationship ends. If the matter reaches court, their situations will be scrutinized in a very detailed manner. It is very important to ask the question, and reflect on, “what is best for the children?” in making decisions about the children of the relationship at all times, but especially after the breakdown of the relationship. Parents who truly commit themselves to putting that principle into practice will be viewed very positively by a court. Most importantly, however, such parents will be helping their children by reducing the negative effects that break-ups often have.

The family law lawyers at MJB can help you get through this difficult process with a clear understanding of your rights and obligations. Call us.