Being The Parents Who Makes Decisions For Your Kids
As of March 1, 2021, our lawmakers have removed the word “custody” from the Divorce Act, and replaced it with “parenting” and “decision-making responsibility”. Before March 1, 2021, custody primarily referred to decision-making responsibility – though it could sometimes mean parenting! Confusing? Yes, which is why they made the change. In this page, where you see “custody”, you should read that to mean “decision-making responsibility”. Thus “sole custody” means only one parent has the ability to make those important decisions.
While the Divorce Act applies to married or formerly married parents, the Family Law Act applies to unmarried parents, and is quite similar to the Divorce Act in substance and in application. Need help? The child custody lawyers at Kahane Law Office work out of both our Edmonton law firm and Calgary law firm. We understand the law and how important your children are to you.
What Is Custody?
As noted above, it means decision-making responsibility. But what kind of decisions? The big-picture decisions, not the day-to-day decisions necessarily. This would include things such as where the child lives, what school they attend, who they associate with, their linguistic/religious/cultural upbringing and things of this nature.
The person exercising parenting time generally makes the day-to-day decisions.
What Is Sole Custody? Full Custody?
Sole custody is where one person is the only person who has the decision-making responsibility for a child. In the family law context, this is usually would one of the parents, though it could also be a non-parent guardian. “Full custody” is simply another way to say “sole custody”.
However, generally speaking, today normally both parents share this decision-making power. Unless there is a compelling reason (e.g. drug use, abuse etc.), Alberta Courts today will normally order “joint custody”.
What Is The Law About Parents’ Time With Children?
The law states that there is only one factor when determining who has parenting time with a child. This factor it what is the best interests of the child. The court considers all factors related to the circumstances of the child when determining what those best interests are, including:
- Needs, given their age and stage of development, such as the need for stability;
- Nature and strength of the relationship with each parent, siblings, grandparents and other important people in their life;
- History of care of the child;
- Child’s views and preferences, depending on their age and maturity;
- Child’s cultural, linguistic, religious, and spiritual upbringing and heritage;
- Plans for child care;
- And others.
The law also states that “the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child” (Divorce Act). In an ideal situation, the child would spend equal time with each parent, but that is not always possible for a number of reasons. Also, sometimes it may not be in the child’s best interest to spend equal time with each parent. Again, the governing principle is “what is in the best interests of the child”.
How Do I Get Sole Custody?
Sometimes it will be in the child’s best interests for only one parent to be the sole decision maker. If that is the case, how does one go about making that happen?
The way one gets sole decision-making authority, officially, is with a court order. This does not mean that there has to be a court battle, where the parties agree, they can enter a “consent order” for the court to issue. But where the parties cannot agree, contentious matters about decision-making authority will usually end up before the court in a hearing or trial. At the conclusion of that hearing or trial, the court will issue an order stating who has that decision-making authority.
In other words, you have two scenarios. You can get the other party to agree with you, and submit a consent order to the court. Alternatively, you start a court application asking for sole decision-making authority. Either way, the end result is a court order.
Can A Father Get Sole Custody?
Perhaps in the past the courts tended to side with mothers in divorce actions. Certainly many today seem to have the impression that a mother is the only one that could be awarded “sole custody”. However, that is just not true anymore, if it ever was. A father can get sole decision-making authority. The only consideration is what is in the best interests of the child. If it is in the best interests of the child that the father have that sole authority, then the court will order it.
However, as noted above, the norm today is for both parents to share the decision-making authority for the big “life decisions” of their child, regardless of who the child has more parenting time with. For that reason, in most circumstances it is unlikely for either the mother or the father to get sole decision-making authority. Usually they will share that power.
Can One Parent Move Away With Their Child?
The court never prevents someone from moving to a different location, as that would infringe a constitutional right to freedom of movement. But a court can prevent someone from moving away with their child. This is often referred to as Child Mobility Rights. While complicating, moving with children is not always an indication of the granting of sole custody.
A court order regarding decision-making authority or parenting time for a child sometimes considers mobility. The orders can include instructions for how to deal with potential future relocations of the child. In fact, under the 2021 changes to the Divorce Act there are mandatory notice requirements. This means that before someone who has access to the child moves away, they must provide written notice of their intention to relocate to all other parties that have access to that child. That way everybody who has time with the child will be aware of any impending move, and they will be able to work out any changes that may be required to the parenting schedule, or to bring a court application to have the court order the necessary changes.
If a parent relocates a child without the consent of the other parent, or without a court order authorizing the move, they may end up with significant legal troubles. The non-consenting parent can bring a court application, and the court has the power to order that the child be returned to the previous location – as long as that is in the best interests of the child.
How Old Before A Child Decides Who They Live With?
As mentioned above, one of the factors that the court considers when determining the best interests of the child is their “views and preferences”. They weight a court will give those preferences depends on the age and maturity of that child. There is no magic age or hard line drawn in the sand for the courts to make these decisions. As to when a child can choose for themselves where they live, it 100% depends on the personality and maturity of the child.
That said, a court will not give a 4-year-old’s views and preferences much weight, but a court will probably allow a mature 17-year-old to make that decision on their own without interference from the court. Generally, the older a child gets, the more mature a child gets. This then corresponds to the more weight the court gives their views and preferences. Because all children do not mature at the same rate, the court really does determine it on a case-by-case basis. Do not make the mistake of assuming that, because your child is a certain age, they should now be able to make their own choices about where they live. Sole custody is an important decision. The courts take it seriously.
Getting The Legal Help You Need
We know how important your children are to you. Parents should always attempt to work together to resolve parenting issues. However, this is not always possible. If you need help or want to understand your legal position, connect with us today. The family law and child custody lawyers at Kahane Law Office help both Calgary & Edmonton area parents. For the quickest response send us an email. We usually get back to you the same or next business day. Click here to send us an email for help. get you the help you need for custody or sole custody. Alternatively, we are happy to take your call. Call 403-225-8810 for our Calgary Office and call 780-571-8463 for our Edmonton Office. We look forward to helping.