When parents divorce, they are usually allowed to come to their own agreements on how their children will be cared for. But when a divorce becomes hostile, this may be impossible. In these cases, binding custody orders will be issued by the court.
Who can file for custody?
Usually, biological parents are the preferred recipients of custody. There are some circumstances where this may not be the case, such as any factor that may render a biological parent unfit for custody.
Section 35 of the Family Relations Act allows biological relatives and some non-relatives to file for custody- always with the provision that the court will press for the best interest of the child.
What are the best interests of the child?
Outside of extraneous factors, which can be difficult to predict, the best interests of the child include but are not limited to:
- Emotional well-being and health
- Special and medical requirements
- The child’s preference
- Any emotional bonds between the child and concerned parties
- Educational, training and development needs
- The adult’s ability to fulfill duties of guardianship
- The court will consider the needs of each child individually
The primary caregiver may not always win custody. The willingness and ability of each applicant to fulfill the duties of custody will be taken into consideration.
The courts will do everything possible to see that siblings remain together. The financial means of the parents is not always the deciding factor, but it can be a consideration if one party is shown to be financially unable to provide the needed care.
What about your past?
Unless your past crimes can be seen as a danger to the child, they should not be considered in custody proceedings. Traffic violations or petty theft ten years past, for example, should not be considered. A history of violence or sex crimes, on the other hand, may well be considered to be a safety issue for the child.
The child’s opinion?
In cases where a child wishes to live with one parent over the other, this preference will carry weight in court. The court will consider the following to determine how much weight the child’s preference will be given :
- The reason for the child’s preference
- The child’s maturity level
- The strength of the child’s bond with the preferred parent
- The preference of teen-aged children is usually taken very seriously
Is joint custody an option?
The majority of couples end up with a joint custody order. These allow both of the parents equal access to their child. These arrangements meet the child’s important need to receive care from both parents on a consistent basis. Joint custody means that both parents have custody of the child. The child will still take up residence with one or the other parent, typically.
Should the parents involved have a volatile and irreconcilably hostile relationship, sole custody could be awarded to the parent who is found to be the most fit. There may still be other circumstances where one parent receives sole custody in order to ensure that the safety and well-being of the child is protected.
Can changes be made?
Although custody orders are binding, you may still file for changes and adjustments as you see fit. You will need to provide evidence that some kind of substantial change to the custody orders must be made in order for your request to be considered.
If one parent has sole custody, for example, and decides to relocate far from the other parent, the noncustodial parent may petition for the custody arrangements to be reconsidered. The same goes for any situation where one parent is no longer fit or suitable to provide care for the child or fails to look out for the child’s best interest.
If you are involved in a custody proceeding or expect to be soon- a child custody attorney in Abbotsford, British Columbia can help.