How do I get Full Custody of my Child?

Overview

If you are in the process of separating from your partner, one of the most important issues in your separation likely has to do with custody of your child(ren). Before we dive into the general process of working out a custody arrangement for your child(ren), it is important to note that the legal system in British Columbia does not use the term “custody” when dealing with matters related to children. In BC, the legal system will refer to issues of how much time a child will spend with each parent as “parenting time” and what kind of decision-making ability each parent will have as “parental responsibilities.” The Family Law Act governs how the courts will come to a decision on all custody arrangements. 

For the purpose of this article, we will use the term “custody” to talk about both parenting time and parental responsibilities.

In BC, only people who are considered as “guardians” may apply for orders regarding custody of their child(ren). Typically, a child’s biological parents, married or unmarried, are considered guardians if they are living together with the child. The child(ren)’s parents remain guardians regardless of separation and regardless of whether one parent moves out of the home that the child(ren) reside in. A parent who has never lived with the child(ren) or another person who is not a parent can apply to court to be appointed as a guardian, which is a topic we will address another day. 

Child Custody arrangements can vary greatly among families. Some parents will share equal amounts of time with the child(ren) (called a “shared” parenting schedule) on a weekly basis, some parents will create as schedule where one parent has more time during the week and one parent has more time on the weekends, or the arrangement can be tailored in more unique ways to best fit what is in the child’s best interest. 

Having full custody of your child(ren) means that you are the only parent that can make decisions about the child(ren) without the input of the other parent. The other parent may have parenting time with the child(ren) but will not be able to make decisions for them. It is also possible for a court to order that one parent will have full custody of the child(ren), meaning that they will have all the parenting time and all parental responsibility for the child(ren) to the exclusion of the other parent. 

However, other than in the types of circumstances outlined below, courts are generally reluctant to make orders removing one parent’s ability to have parenting time and exclude that parent from decision making related to the child(ren). It may be in the child(ren)’s best interest for the court to make an order for sole custody in circumstances where, for example:

• One parent dies;
• One parent is not able to safely parent due to issues of alcohol or drug consumption; 
• Allowing a parent to have shared custody would result in harm to the child(ren), either physically, emotionally or otherwise;
• One parent has chosen not to spend any time with the child(ren) for a long period of time or has otherwise abandoned the child(ren); or,
• One parent has left the country and will not be returning for quite some time. 

The above list is not a closed list and there may be other circumstances where a court may agree to an application for full custody. What is important to remember is that the courts expect a high standard of evidence to show why one parent should have sole custody. The lawyers at Cote & Evans Trial Lawyers are highly experienced at assessing and presenting a case for sole custody and we would encourage you to reach out for a free 30-minute consultation to discuss your custody matter.

If you cannot come to an agreement with your ex-partner about custody issues, there are two ways that you can go about working out a custody arrangement: you can apply to the courts for a decision on custody arrangements or you can mediate issues of custody with an accredited mediator.

How to Apply for Full Custody through the Courts

You can apply to either the Provincial Court of British Columbia or the Supreme Court of British Columbia for orders regarding custody issues. If you are seeking orders regarding divorce and property division, as well as child custody issues, you would apply in the Supreme Court of British Columbia. But if you are only applying for orders regarding custody and/or financial support from your ex-partner, you would make an application in the Provincial Court of British Columbia. Generally speaking, the court process in the Provincial Court of British Columbia is a more cost-effective process. 

An application for custody in the BC Supreme Court begins with the filing of a Notice of Family Claim. You must then serve that claim on your ex-partner and if they are located in British Columbia, they will then have 21 days to respond to your claim. The Justice Education Society of British Columbia has a helpful guide outlining the general process of proceeding with a family law claim in the BC Supreme Court. 

The process for making a claim for sole custody in the BC Provincial Court is dependent on which registry you will file your claim. The Provincial Courts located in Surrey and Victoria are called “Early Resolution Registries” and in these registries, you must try to resolve your issues out of court prior to making any application to the court. 

The lawyers at Cote & Evans Trial Lawyers are highly experienced at giving advice on and dealing with applications regarding custody issues in both the Supreme and Provincial courts. We would recommend that you reach out to our office regarding any and all issues of sole custody prior to filing any application to the court regarding this complex issue. 

Alternative Dispute Resolution

A person applying for sole custody does not necessarily have to apply to the courts to determine this issue if they cannot reach agreement with their ex-partner. Often, custody issues can be worked out outside of court through mediation, arbitration or through the use of parenting coordinators.  

Using mediation, arbitration or a parenting coordinator is often a less stressful, more cost-effective and satisfactory way to solve custody issues. 

The lawyers at Cote & Evans Trial Lawyers are experienced at dealing with such methods of alternative dispute resolution and are happy to assist you in navigating this process. 

At Cote & Evans Trial Lawyers, we understand the stress and anxiety that comes with dealing with custody issues, which are sensitive and often stressful. If you have questions or concerns about obtaining sole custody of your child(ren), please contact us today to speak to a lawyer.