Ask a BC Family Lawyer: How Can I Change Child Custody?
When parents separate or divorce, arrangements must be made for where their children will live, how often each parent will see the children, and how parenting decisions will be made.
Once custody arrangements have been made, can they be changed?
The answer is yes – however, this is a very complicated area of family law. The law and process will depend on the form of the existing custody arrangement, and there can be significant legal implications to changing a custody arrangement – not least of which is that a change to a custody arrangement can affect child support payable.
If you need to change an order or agreement (or your ex is trying to change an order or agreement with respect to the children), the information in this post is intended to provide you with some of the fundamentals of BC child custody and parenting arrangements. That being said, if the change to child custody is disputed, it is highly recommended that you get legal advice with a family lawyer who has experience with child custody matters.
Child custody and parenting arrangements in BC
First, let’s discuss terminology, as it is important to be clear about what you are seeking to change. “Access” is about the child's schedule of time with their parents, and a parent can have access without having custody. The term “custody” under the federal Divorce Act (which applies in BC to parents who were legally married to each other) means that the child lives with you at least some of the time and you have rights and responsibilities to make decisions about the child. Custody can be arranged in a few different ways:
• Sole custody – one parent has legal responsibility for care and decisions and the child lives with that parent most of the time;
• Joint custody – the parents share legal responsibility for care and decisions and the child can live with both parents or one parent;
• Shared custody – each parent is responsible for the child at least 40% of the time; or
• Split custody – one or more children live with one parent, and one or more children live with the other parent.
The language used to describe child custody recently changed under BC’s Family Law Act (which applies to all parents, whether married, unmarried, dating, or not in any relationship), so that in BC the emphasis is on “parenting arrangements” that address “parental responsibilities” and “parenting time” with respect to a child.
Can child custody be changed by agreement?
Yes. In fact, it is ideal for parents to come to an agreement about changes to how children will be cared for over time, as this will allow for more flexibility and consideration of what is best for the children and the parents. If you think you and the other parent could sort out the change to custody without going to court, you should contact a family lawyer before entering an agreement to ensure that you understand the legal implications of how the change will affect you and your child. A family lawyer can also assist you with preparing an amendment to an existing agreement or a new child custody agreement.
What if parents do not agree on the change to child custody?
If the change to child custody is disputed, the parents can use alternative dispute resolution options such as mediation to try to come to an agreement. If the parents are not able to agree, the decision must be made by the courts. The process depends on what you are seeking to change:
• If the existing child custody arrangement is contained in an agreement, you must bring an application to the court to set aside parts of the agreement and make an order in place of the parts of the agreement that were set aside.
• If the existing child custody arrangement is contained in a court order, you must apply to the court to change or “vary” the existing child custody order. The specific process depends on whether the original order was made under the Divorce Act or the BC Family Law Act (and if the latter, whether the original order was made by the BC Supreme Court or BC Provincial Court).
What is the test for changing child custody in BC?
The court will not vary an order or agreement lightly. A parent who wants to change an order or agreement must establish that there has been a change in circumstances affecting the condition, means, needs and circumstances of the child. The change must be “material” (i.e., significant) and not foreseen when the original order or agreement was made. It can be difficult to meet the test to change a child custody order or child custody agreement.
Examples of a material change include a child no longer wishing to have contact with a parent (see here for our family lawyer’s discussion of whether a child can decide who they want to live with), a parent wanting to move to another province or country with the child (see here for our family lawyer’s discussion of mobility rights), drug or alcohol abuse by a parent, or abuse or alienation of the child by a parent. If the court is satisfied that there has been a material change, the court will then make a fresh assessment about what is in the best interests of the child – the focus is not on the interests, rights, or entitlements of the parents.
Do you need legal advice on child custody from an experienced BC family lawyer?
Whether you need to know more about changing parenting time or child custody or have questions about any aspect of BC family law, the team at Valerie M. Little Law Corporation is here to educate and support you. No two situations are alike, so we make it a priority to deliver individual care and attention.
Ms. Little, who has been practicing family law for over 30 years, will take the unique circumstances of you and your children into account before advising you on the best course of action. For more information about our family law office or to schedule a consultation with our family lawyer, please call us today. Our law offices are centrally located in New Westminster and our family lawyer serves the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey, Cloverdale, Delta, Langley, Tri-Cities, and the Lower Mainland.
This blog is intended as general information only and is not intended to provide legal advice for any particular situation. Please consult a qualified family law professional before making any family law decisions.