Do I Need a Lawyer for Guardianship?
In BC, only the legal guardians of a child can have parental responsibilities and claim parenting time with the child.
Parental responsibilities are vast and include making day-to-day decisions affecting the child, having day-to-day care, control and supervision of the child; making decisions about where the child will reside and what medical care the child receives; and making decisions respecting the child's education and participation in extracurricular activities. Given the enormous scope of parental responsibilities and the importance of having the right to parenting time with a child, the issue of guardianship in BC is significant. Let’s examine who can have guardianship of a child in BC and whether you need a lawyer for guardianship.
Guardianship of a child in BC: Parents of the child
It is typically the case that a child’s guardians are his or her parents. When parents of a child live together – even if they are not married – they are “automatically” the child’s guardians and share responsibilities for the care and upbringing of the child. If the child’s parents separate (in other words, stop living together), both parents continue to be the child’s guardians and to share parental responsibilities, regardless of which parent moves out or with whom the child lives.
When is a parent not a guardian in BC?
It is possible for a biological parent to not be a guardian, for example, where a child is born after a short relationship where the parents did not live together. A parent who has never lived with a child is not a guardian unless:
- That parent is actively involved with and regularly cares for the child;
- That parent applies to the court for a guardianship order; or
- The parents enter into an agreement with respect to guardianship.
It is also possible for a biological parent to be removed as a guardian by agreement or court order. If a parent is not a guardian, they can still have time with the child (under BC law this is known as “contact” with the child) but will not have any parental responsibilities. A parent who wants to obtain guardianship or a parent who wants to remove another parent as guardian should consult with a BC guardianship lawyer to get legal advice and assistance with negotiating an agreement or applying for a guardianship order from the courts.
Who else can have guardianship of a child in BC?
A person other than a parent can become a guardian of a child (for example, a grandparent, stepparent, or other family member) and it is also possible for a child to have more than two guardians. A court order must be obtained for a non-parent to become a guardian of a child – in other words, it is not possible for a non-parent to become a guardian in BC by way of a written agreement. It is also important to note that anyone can apply for guardianship in BC; they do not have to be a relative of the child. That being said, the court is very cautious when deciding who can be a guardian of a child. A person who applies to become a guardian of a child must provide the court with a special affidavit that contains information about their plans for the care of the child and details about their background. The court will not grant a guardianship order unless it is satisfied that the order is in the best interests of the child. It is highly recommended that you make an appointment for guidance from a family lawyer if you are considering applying to be appointed as guardian of a child.
Do I need a lawyer for guardianship?
Regardless of your relationship to the child, if you need an agreement or court order that relates to guardianship, it is strongly recommended that you seek the advice and services of an experienced BC family lawyer. A lawyer can help you negotiate and formalize a legally binding guardianship agreement or can assist you with preparing and filing a court application to obtain a guardianship order. Here are some examples of specific situations where a BC guardianship lawyer would be needed:
• To add or remove a parent as guardian by agreement or court order. Through a court order or binding agreement, the parents can define which guardians can exercise which parental responsibilities, specify which duties allow guardians to act separately and which duties require guardians to act together, and clarify when consultation with the other parent is required before making a decision.
• If you are a grandparent wishing to apply for legal guardianship of a grandchild.
• If you are a step-parent who wants to become a guardian of your step-child. A step-parent does not automatically become a legal guardian, regardless of how long they have lived with a step-child.
A step-parent must obtain a court order to become a guardian of a step-child.
Schedule an appointment with an experienced BC guardianship lawyer
If you would like more information or have questions about how a lawyer can assist you with guardianship of a child, please reach out to Valerie M. Little Family LawCorporation today by calling 604-526-3333. Valerie M. Little has over 30 years of experience as a BC family lawyer and can assist with all areas of family law including advising on guardianship, custody and access, and child support. Make an appointment for your initial consultation so that we can discuss your options together.
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.