Family Law

This article was written by Linda Rainaldi of the People?s Law School with funding assistance from the Law Foundation of BC.

?Custody issues?, says family lawyer John Anthony, ?should be the simplest area of family law because it all comes down to what is in the best interests of the children.?

To have custody of the children means you can make all the decisions about the children?s well-being, such as their day-to-day activities, moral and religious issues, medical treatment, and so on.

Joint custody means that both parents share the right to custody ? it does not mean that the children will live an equal amount of time with each parent. ?This arrangement is pretty typical when the parents can work together as a couple as far as the children are concerned,? says Anthony. ?Whatever your differences, you?ve got to put them aside when the children are involved because conflict between the parents has such a negative impact on the children.?

When custody is in dispute, it is often the mother who ends up with custody of the children. ?This is not because there is a bias in favour of women,? advises Anthony, ?but because mothers are typically the primary caregivers prior to separation. There are many cases where the father is granted custody when he has been the parent who has chosen to stay home with the children.?

If one parent is granted custody by the court, the other parent is often given ?access? rights. This is nothing more than a ?visitation schedule? and unless the court has given the parent some other rights, the parent with access doesn?t get to make any meaningful decisions about the children. In some cases (like where the children?s safety may be at risk), the parent?s visits with the children must be supervised.

Where the parents cannot agree on joint custody, they may agree to joint guardianship. This means the parent who does not have custody (the non-custodial parent) has a certain set of rights, such as access to the child?s medical and school records, as well as a right to be involved in certain decisions about the child. Some degree of cooperation between the parents is necessary because they must reach an agreement on the big issues. If not, they?ll end up before a judge in court who is not equipped to micro-manage the affairs of the child.

?One thing to remember before entering into a guardianship arrangement,? cautions Anthony, ?is if one parent dies, the other one automatically gets custody of the children.? This result cannot be avoided by appointing someone else in your will to take responsibility for the children.

One of the serious issues facing parents now is the wish of the custodial parent to move, usually because of a job opportunity or a new relationship. Moving re-opens the issue of custody and the court will reconsider the issue. ?In other words,? Anthony says, ?the court will not assume that the custodial parent has the right to move with the children.

Regardless of what the court order says about custody, it is important to look at whether both parents are intimately involved in the daily lives of the children after separation. For example, if the court order says that the mother has full custody but the children were in the full time care of the father, the court may be reluctant to alter that arrangement by allowing the mother to move the children away and severing the father?s close ties to the children.

In the end, what matters most is the best interests of the children. The parents should work very hard to keep their differences away from the children. Everyone loses when parents choose to take out their hostilities on each other by involving the children in the dispute.

Lawyers or other professionals can mediate the custody dispute and help the parents reach an agreement. The topic of mediation will be discussed in a future article.

John Anthony is a partner with Owen & Company in Nanaimo, B.C.

The purpose of this article is educational in nature. It is not intended as legal advice. It offers general information only. If you have a legal problem, you should seek professional advice.