Guest Blog: Parenting and Child Residence in Alberta
It is the most traumatic event in a child’s life when parents separate or divorce. The immediate question which comes up is “who does the child live with”? Generally, it becomes very difficult for children to decide which parent they want to live with or there are times when a child is opinionated and very clear about who they want to live with.
Custody of children after divorce:
Custody or guardianship is the right and the responsibility of the parent over the child’s upbringing. The numerous types of custodies include joint, sole, shared or split.
- In joint custody, both the parents mutually decide about the child’s welfare
- In sole custody, only a single parent is authoritative over the decisions of the child’s upbringing whilst the other parent’s sole responsibility is to pay maintenance.
- In shared custody, the children can reside with both parents more or less equally.
- Split custody is wherein the children are divided amongst the parents.
The parent who wants to meet the child must apply for access under the Family Law Act or Divorce Act, whose agreement must be drawn up by a lawyer and make it legally binding.
How does a Court make its decision?
The decision of the Court is based upon the best interests of the children and not of the parents’. It considers factors such as:
- The behavior of the parents.
- What kind of environment will be the best for the child?
- The location of the home in comparison to the child’s school and social activities.
- With which parent is the child more secure/bonded?
- It does not consider the gender of the parent to whom the custody will be granted.
- If the child is old/mature enough, the Court may take into account his/her wishes.
The process of application and trial by the Court may take a couple of months or longer, during which the Court may make an Interim or Access Order.
Are the child’s wishes taken into account?
In some cases, the opinion of the child is taken into account by the judge who can
- Ask the child unattended to make sure he/she is not influenced by a parent.
- Ask the child to make a legal report under the guidance of a lawyer.
The preferences of the child are considered based upon his/her age and maturity which could be analyzed from the evidence of a child psychologist since each child is unique in terms of their maturity, development and how they handle stress. The older and mature a child, the more importance is given to his/her views. This decision is very complex as they evaluate whether the preference of the child is forced or not. They also compare to make sure what’s best for the child’s interests.
Even if the child’s perspective is viewed, it is not mandatory that those wishes are fulfilled. The final and binding judgement of the Court is made only after determining all the evidences presented to the judge.
The rights of a child of separation/divorce:
If children are physically or emotionally abused by their custodial parent, they can seek help from their non-custodial parent, their relatives or even child protection workers who can consult with lawyers and make arrangements for them.
If the child is under 12 years of age, shifting to live with the other parent might be a little hard but not impossible if they provide legitimate reasons. When the child is 14 years of age or over, it becomes an offense for anybody to compel them.
The child may wish to live with the non-custodial parent
- Just to spend more time with them.
- If they feel trapped or abused by the custodial parent.
- If the environment provided by the custodial parent is unsafe or there are alcohol, drugs and/or guns in that place.
If any of the above circumstances are presented in the Court with evidence, the Court may change its decision in favor of the child.
If the child’s lawyer is appointed to speak to the child to find his/her perspective, then the child must
- Be truthful about his/her parents.
- Be clear as to with whom they want to live with.
Alternatives for Court Judgement:
If the parents cannot agree upon the decisions made by the Court for their children, there are different alternatives which they can attempt, such as:
- Mediation: Mediators are trained persons who help families discuss their problems calmly, explore possible options and come up to an agreement. They neither provide legal advice nor do they take sides in disputes.
- Custody assessment/Home study: This is the process wherein a social worker or a psychiatrist or a psychologist assesses the problem by meeting with the people related to the family, conducting a psychological test of the parents. Then they produce a report and suggest ways on how to settle the predicaments.
- Lawyer-assisted settlements: To help the parents negotiate settlements, the Courts have come up with several programs wherein the parents and the lawyers discuss the case informally and come up with an agreement.
Author Bio: Mollaei Law is a law firm specializing in business law serving businesses and entrepreneurs. We provide legal expertise in all stages of business development by drafting and reviewing contracts and agreements, assisting transactions and negotiating, forming LLC’s and Corporations, registering trademarks and copyrights, business planning, it in application and answering any legal questions you may have about your business. You can read my latest published article about Dentistry Professional Corporation.