When it comes to children, the best interests of the child is the sole consideration in determining issues of custody/guardianship and access/parenting time. Lindsay Kenney’s family lawyers have helped many families in custody matters, ensuring children and their futures are protected.
Custody is the right of a parent to care and make decisions about their children, such as health, education, and religious upbringing. Similarly, guardianship is the right of a parent to have parental responsibilities and parenting time with their children. The difference is that custody is governed by the federal Divorce Act, which only applies to married couples. Parents who are common-law spouses or who are not in a relationship can only have guardianship of their children pursuant to the provincial Family Law Act. In some instances, a person who is not a parent, such as a grandparent, aunt or uncle, step-parent, or a family friend may also become a guardian of a child.
A parent can either have sole custody of their children where he or she makes all decisions concerning their children, or they can have joint custody with the other parent, which results in both parties cooperating to raise the child and make decisions. In British Columbia, there is a presumption towards joint custody.
Similarly, both parents are generally guardianships of their children, as long as they lived with their children or regularly cared for their children, or there is an agreement between that parent and all of that child’s guardians. It is extremely rare that a parent with guardianship of their children will lose guardianship, and it will only occur where that parent is shown to be incapable of proper parenting.
Access–or parenting time–is the amount of time that a parent spends with their child. The principle is that a child should have as much contact with each parent as is consistent with that child’s best interests. A parent who is not a guardian can also spend time with their child, but in that case, it is called “contact” instead of “parenting time”.