How to Get Full Custody of Your Child in Calgary
The older phrase “full custody” can refer to one person holding decision-making responsibility, most parenting time, or both. Alberta's parenting frameworks allocate decision-making and time separately.
What “Full Custody” Maps Onto
Identify the allocation you are asking for: decision-making, parenting time or both.
Under the Divorce Act, a parenting order may allocate parenting time and may allocate decision-making responsibility. Decision-making responsibility, or any aspect of it, may be allocated to either spouse, to both spouses, to a person other than a spouse who is a parent of the child or stands in the place of a parent, or to any combination of those people. So “full custody” corresponds to one person holding the decision-making responsibility, or to one person having most of the parenting time, or to both — and those are separate allocations that a court makes separately.
Under Alberta's Family Law Act, the framework is guardianship. A parenting order may allocate the powers, responsibilities and entitlements of guardianship among the guardians, either generally or specifically. Parenting time allocated to a guardian is exclusive to that guardian, subject to any limitations the court imposes.
What a Parenting Order Can Actually Contain
An order is built from terms, and each Act sets out what those terms may cover.
A Divorce Act parenting order may allocate parenting time and decision-making responsibility; may include requirements about any means of communication between the child and another person who holds parenting time or decision-making responsibility, to occur during the first person's parenting time; and may provide for any other matter the court considers appropriate.
It may be made for a definite or an indefinite period, or until a specified event occurs, with any terms, conditions and restrictions the court considers appropriate.
It may require that parenting time, or the transfer of the child from one person to another, be supervised.
And it may prohibit the removal of a child from a specified geographic area without the written consent of a specified person or a court order.
And Alberta's Act addresses the other guardian's position directly. Unless the court orders otherwise, where a guardianship power or responsibility is allocated to one guardian, the other guardian or guardians remain entitled to make inquiries and to be given information about any significant matter that arises in connection with the exercise of that power or responsibility.
In an order under the Divorce Act, the rules about the best interests of the child that apply to a final order also apply to an interim order and to a variation of one.
What a Court Weighs
Under both Acts the best interests of the child are the only consideration, and both put safety first in their own words. The Divorce Act makes the child's physical, emotional and psychological safety, security and well-being the primary consideration. Alberta's Act requires the court to ensure the greatest possible protection of the child's physical, psychological and emotional safety.
The factors themselves group into a handful of subjects.
- 1
The child's needs, given their age and stage of development, including the need for stability.
- 2
The history of care.
- 3
The child's views and preferences.
- 4
The nature and strength of the child's relationships with the people around them.
- 5
Each person's willingness to support the child's relationship with the other, and each person's ability and willingness to care for the child and to communicate and co-operate about them.
- 6
Any plans for the child's care.
- 7
The child's cultural, linguistic, religious and spiritual upbringing and heritage.
- 8
And any family violence.
The two Acts set their factors out differently, in different structures and different words, and which list applies depends on which Act the matter is under. They are not the same list stated twice.
On a parent's past conduct, the Divorce Act sets a prohibition with one exception. In determining what is in the best interests of the child, the court is not to take into consideration the past conduct of any person, unless that conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. So conduct that is not relevant in that way is outside what the court considers, and conduct that is relevant is not excluded by that provision. The same limit carries into an application to vary an order.
And on how time is allocated, the Divorce Act directs the court to 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.
How the Allocation Is Decided
Because the best interests of the child are the only consideration under both Acts, the allocation follows from the facts of one particular child's situation rather than from a category a parent can qualify for in advance.
That is why the useful next step is a conversation about those facts — what the arrangement looks like now, what is not working, and which of the terms an order can contain would address it.
What kinds of information bear on those factors is set out in evidence in a parenting dispute.
How a Lawyer Helps
A family lawyer can explain which Act your matter is under, set out which of the two allocations you are actually asking about, explain the factors the court must consider on your facts, and draft the terms an order would need to address your concern.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Why THEBIL Law
THEBIL Law is a family law firm in Calgary handling family law matters including parenting and child custody, divorce, family property, child support and spousal support.
Talk to THEBIL Law
Contact THEBIL Law to discuss your parenting arrangement and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada.
Call 403-457-3128.