Child Custody and Guardianship

What some parents don’t realize is custody is a separate issue from parenting. Custody governs the parents’ responsibilities and rights regarding the children’s upbringing and deals with the decision making regarding the children of the marriage.

Unless there are very specific circumstances that make one parent unfit to make decisions on behalf of the child, Albertan family courts prefer that both parents play a part in the major decisions that affect a child’s upbringing and that they spend as much time as possible with the child.

Traditionally, the different types of child custody arrangements were as follows:

Joint Custody
Joint custody is when both parents are capable of making decisions in the best interests of the child. A joint custody arrangement is the most common in Alberta.

This allows the Parents have to be able to work together and communicate. Having joint custody does not decide the amount of time you have your child for.

The child could live with one parent 90% of the time, but the parents have joint custody.

Shared Custody
Shared custody is where parents split time with the children equally. Parents with shared custody usually have joint custody arrangements too.

Split Custody
Split custody is where some children live mostly with one parent and other children live mostly with the other parent. Most parents with split custody also have joint custody.

Sole Custody
This is a rare arrangement in Alberta. This is where one parent has full custody. In this case the child resides with one parent and this parent makes all of the daily and major decisions. The parent without custody usually still has some access to the child.

• The decisions that you are allowed to make are:
• the child’s place of residence;
• the child’s education;
• the child’s extracurricular school activities;
• the child’s cultural upbringing;
• the child’s spiritual upbringing;
• whom the child will associate with;
• whether the child should work and, if so, the details of the work;
• give consent to health-related treatment for the child;
• give consent of a parent or guardian where required;
• receive and respond to any notice to a parent or guardian;
• deal with any legal proceedings relating to the child;
• appoint a person to act on behalf of the guardian in an emergency; situation or when the guardian is temporarily absent; and receive any health, educational and other information that may significantly affect the child.

There have been some recent changes to national and provincial divorce laws that have changed the language used to describe Alberta child custody arrangements. They are now referred to as parenting orders.

Parenting orders are different from the traditional custody arrangements because they apply even when no divorce proceedings have been officially started. By law, when reviewing the parenting plan, the court must consider the physical, emotional, and psychological well-being of the children.

The best interests of a child legally includes consideration of the following:

• The child’s needs considering age and development
• The child’s relationship with each spouse, siblings, grandparents, and other people who play an important role in the child’s life
• The willingness of each spouse to support the child’s relationship with the other spouse
• The history of how each spouse has cared for the child
• The child’s preferences, taking age and maturity into account
• The child’s cultural, linguistic, religious, and spiritual upbringing and heritage
• Plans for the child’s care
• The ability of each person to care for and meet the needs of the child
• The ability of each person to communicate and cooperate with each other
• Any family violence
• Any civil or criminal proceeding, order, condition or measure relevant to the safety, security and well-being of the child.

Family violence

The Divorce Act is committed to prioritizing the safety, security and well-being of the child above anything else.

If there has been any family violence against a child or another parent then that is relevant to children’s best interests. For example, the court must consider:

• if a person who has been violent towards family members can adequately care for and meet the needs of the children
• whether the parents can cooperate on parenting issues

Another factor that the Act points to is whether there are any other civil or criminal orders or legal cases that are related to the safety, security and well-being of your children. For example, this could include a past criminal conviction for an assault against a family member or a child protection order involving someone in your family. The court takes any potential safety issues the child may face very seriously.

In addition to the well-being of each child, the parenting plan or parenting agreement takes into consideration:

• Parenting time. Time a child spends with each spouse/partner.

• Decision-making responsibilities. Describes who will make important decisions about the children and how those decisions will be made.

• Contact. Describes who will be allowed to spend time with the children besides the parents, for example, grandparents.

• Schedule and living arrangements. The parenting plan should also describe the living arrangements and schedule for the children.

What is parenting time?

When one parent has sole authority over a child while they are in school or daycare, this is known as parenting time. Each spouse has the right to make decisions that affect the child during their scheduled parenting time period. Each spouse has the right to know about their child’s health, education, and welfare. The parenting time schedule may be fixed or may be open-ended based on the demands of the family.

What are the different types of decision-making responsibility?

Parenting plans must also be used to determine the decision-making responsibility in cases where parents are divorcing or separating. This applies to both married and unmarried parents whether or not they cohabitated.

• Sole decision-making responsibility means that one parent has the right to make decisions about the child’s upbringing. The non-decision-making parent can express an opinion and has a right to be informed of major decisions, but the parent with the decision-making responsibility has the final say.

• Joint decision-making responsibility requires both parents to share equally in the decision-making responsibilities. This requires effective communication and cooperation between the parents.
• Split decision-making responsibility means that parents have split responsibility for making decisions about more than one child. As an example, this may happen when one child lives with one parent and another child lives with the other parent.

It should be noted that decision-making arrangements can be customized to the family’s specific circumstances; they do not have to fit neatly within one of these models.

Parenting agreements can also be changed. In Alberta, a parenting agreement doesn’t have to be changed in court. If you want to change the agreement without getting the court involved, you can talk to the other parent to try and negotiate a new agreement or use family mediation if negotiations are difficult.

A guardian has certain rights and responsibilities when it comes to a child. A guardian is entitled to be allowed to make decisions regarding their child’s life. They are able to have enough contact in their life to exercise those rights. A guardian is also responsible for a child’s physical and emotional well-being.

The Family Law Act sets out who is a guardian of a child. Both parents of the child are guardians if:

• You were married to each other when your child was born;
• You were married to each other, but divorced before your child was born;
• You lived together for at least 12 months or you were in an interdependent relationship before your child was born; or
• In some case if you were married or became adult interdependent partners after your child was born.

There are times when you were not living together or married when your child was born. In those cases a parent is a guardian if that parent has shown an intention to fulfill the role and responsibilities of a guardian within one year of finding out about the pregnancy or the birth of your child. Some ways that a parent may show that intention are:

The parent voluntarily pays or offers to pay child support.
Offers to help care for the child and offers to helps other ways, such as buying formula, diapers, cloths etc.
The parent shows their intention to assume the responsibility of a Guardian.

If you are not a guardian and wish to become one you would apply to the courts to have a court order stating you are the guardian.

If you need assistance with child custody & guardianship issues in Edmonton don’t hesitate to contact us.