Child custody is the concept of where a child will reside after their parents have separated or divorced. This is not always the best way to describe the way parents arrange time with their children. A new concept has entered the conversation and the legislation, and it is called parenting time. It is of course important to know whether or not the child should be in a sole custody situation or in a joint custody situation. Historically the parent with sole custody had the most control over decision making and day to day decisions affecting the child, so parents would fight over the concept of sole or joint custody. It is now much more common for the judges in all cases to presume that a joint custody order, or shared parenting/residence, is the best outcome for most children, so long as there are no safety or welfare issues affecting the child.
Parents are fighting less and less over agreements to share custody. The important issue is no longer sole custody versus joint custody, but in a joint custody arrangement how much time will a child spend in each parents home. Thus, the concept of parenting time has become much more important.
Joint Custody
Decisions about children after parents separate must always be made on the basis of one very important legal principle: What is in the best interests of the child? As is pointed out in the Parenting After Separation Handbook, developed by the Ministry of the Attorney General, Province of B.C., “when it is possible for both parents to maintain a close relationship with their child there are many advantages:
• Improves the child’s emotional well-being and recovery from the separation.
• Aids in the child’s healthy emotional development.
• Relieves the child from feeling divided loyalties.
• Alleviates the child’s guilt (why doesn’t the other parent want to see me?).
• Helps maintain parental authority.
• Promotes parental willingness to provide financial support for the child.
• Gives the child an opportunity to develop an extended family identity.
• Demonstrates that parents can put aside personal differences enough to unite around parenting.”
Mom’s house, Dad’s house
Joint custody (also know as shared custody) does not necessarily mean that the child or children will alternate equal periods of time with each parent. It is simply a commitment to shared parenting. “The child may live one week with the mother and one week with the father, or may have a primary residence with either parent. Joint custody allows input from both parents as to how the child should be raised.”
History of joint custody
In the past, if separating parents could not get along or communicate in any meaningful way, judges were reluctant to order joint custody. The courts are now willing to impose on parents the obligation to cooperate around decision-making and to order joint custody even in situations where communication is at a very low level. It is the responsibility of the parent resisting that outcome to prove that joint custody is not in the best interests of the child.
A starting point these days is to assume joint custody and joint guardianship is best for the children. Not all parents agree, but research has shown clearly that the children do best when both parents cooperate and participate in important decisions affecting their children’s lives.
Access
Access is again a historic concept of how much time the non-custodial parent may have with a child. Where most arrangements now result in shared or joint custody and the children may spend as much as half the time with each parent, the concept of access is losing its importance. This moves away from the concept of an access parent and a custody parent.
One of the most important steps to take as you are approaching a separation or divorce is to work out a parenting plan for each parent. What that means is how much time the child or children will spend in each parent’s home. It is worthwhile to go online for precedents; or to create your own year-long schedule and look carefully at all the important times of the year when the children will desire to be spending time with each parent, or where each parent wants the child to spend as much of that important time as possible with them. The most important ones that arise are of course the extended Christmas and Easter breaks when children aren’t in school. All of the long weekends of the year, all birthdays, and summer holidays become important times to plan and negotiate how a fair schedule can be set-up where the children maximize contact with each parent.
Access, or parenting time agreements, can take two forms. Historically, a very common form was reasonable access, or reasonable visitation, as agreed upon between the parents. When parents have great respect for each other and cooperate well, that kind of an agreement can work quite well. It provides for a great deal of flexibility and allows the parents to change the schedules as appropriate for the wellbeing of the children and for the parent’s work obligations.
However, in many cases the general expression of reasonable visitation breaks down when the parent who may have the child residing with them most of the time refuses to cooperate or agree to times that the other parent wants to spend with the child. In those cases where parents can’t agree on a reasonable visitation schedule, what is called specified access has to be arranged. This is best done with reference to a parenting plan and a year-long schedule and clearly defining in a calendar format the times and dates that the children will move back and forth between the homes. In one case I had a father who is an engineer in Alberta who created about 30 pages of details for the year-long schedule, which is in most cases excessive. Usually two or three pages of details for a whole year-long schedule should be prepared and worked out.
Primary Residence
A common term in custody and access agreements now is primary residence. This means that if a child is spending the majority of their time with one parent, that magical legal expression becomes the primary residence. If the child is going back and forth on a 50% basis, such as week-on week-off, there would be no primary residence.
Joint custody allows for a primary residence designation, and in situations where parents want to have that concept recognized, it is a common term in separation agreements and court orders. The federal divorce act mandates that children should have maximum contact with both parents. This principle is interfered with only if one of the parents pose a risk to the safety or well-being of the child. Parents should cooperate in maximizing the time the child or children have in each home. The more time a child spends with a parent the stronger the bond.
Grandparent Access
It is common for grandparents to want to have time with their grandchildren, and in many unfortunate situations the custodial parent opposes that contact. The BC Family Relations Act provides that grandparents can bring an application and they are designated as parties under the act to have a schedule ordered by the courts. Unless the primary resident can prove that the grandparent’s involvement is harmful and or unnecessarily interfering in the child’s development, as a rule the courts will grant access to grandparents. A common model is once a week visits, perhaps overnight; perhaps for an important meal like Sunday nights. Grandparents should not be hesitant with going forward with their goals for having contact with their grandchildren and if opposed, they have every right to bring a court application. That can be done quite easily in the provincial court.
Age of the child
There is often confusion about when a child is of the right age to make a decision about which home they would like to live in. The courts will in some cases wish to hear from the child directly, or, more often wish to hear from the child through a counselor, therapist, or psychologist in what is known as a child’s ”wishes report”.
The child’s wishes become quite important starting at around age six, and continue to be important up to the ages of eleven or twelve. The child’s wishes are not binding, but they are an important factor in both the judge’s and parent’s decision making, around what contact the parents and child should have.
The important threshold age is around eleven or twelve where most judges and parents should respect the wishes of the child, as he or she is close enough to being an adult to vote with their feet. This principle is applied by most judges in most cases so long as the child is of an average level of maturity for their age and there is no cognitive impairment.
Supervised Access
In cases where there is a proven and real danger to the child, it may be that the danger or threat can only be dealt with by the imposition of a supervision term on access. These cases often arise when there have been abductions, violence, or some other major problems involving alcohol, drugs, abuse or neglect. In these circumstances a judge will often order supervised access to ensure the safety of the child. The supervision is usually intended to be a temporary or interim measure and to be reduced and eventually cancelled to allow free and open contact between the child and the parent. The time required for supervision and arrangements for reduction of supervision will change in each case depending on the problems posed by the parent.
What is Joint Guardianship?
The model I recommend for the details of a joint guardianship agreement is as follows:
• to be informed of the children’s medical and dental practitioners;
• to contact the children’s medical and dental practitioners and obtain the children’s medical and dental records;
• to be consulted with respect to the selection of the children’s alternative caregivers;
• to be consulted with respect to the selection of the children’s schools and school programs;
• to consult with the children’s alternative caregivers and teachers;
• to be informed of events at the children’s schools so the other party may attend;
• to be informed of parent/teacher nights so that the other party may attend;
• to be consulted with respect to any significant health issues relating to the children;
• to be consulted with respect to any significant change in the children’s social environment;
• the parties will have the obligation to discuss any significant decisions which have to be made with respect to the children, and each parent will have the obligation to • try to reach an agreement with respect to those major decisions;
• in the event that the parties cannot reach an greement with respect to any major decision despite their best efforts, either party will have the right under section 32 of the Family Relations Act to refer that decision to the court.