Custody and Parenting
Applicable Legislation
The federal Divorce Act applies to married couples who have separated and are seeking a divorce. The Divorce Act also deals with custody and parenting arrangements, and child and spousal support in the context of a divorce. In comparison, Alberta's Family Law Act applies to non-married couples. There are differences between the two pieces of legislation; however, many of the factors considered for parenting are similar and based off the same principles.
Full (Sole) Custody vs. Joint (Shared) Custody
Full custody is where one parent receives a majority of the custody time and legal rights regarding the child. Joint custody is where the parents split physical custody of the child. They may alternate time periods in which the child is spending with one parent.
Decision-making Powers
Primary Parenting provides legal custody rights that allow a parent to make major life decisions on behalf of the child. These decisions typically concern important aspects of the child's health, safety, and welfare, such as schooling decisions, medical care, and what type of religious instruction the child receives
The term custody refers to how parents make decisions for their children. Joint Custody means that the major decisions are made by the parents together. Sole custody means that one parent makes the major decisions. If the other parent has sole custody, you have a legal right to access information about your children from caregivers, health care professionals and educators but you don’t have the ability to give them instructions regarding your child. If you share joint custody, both parents need to make decisions together and instruct caregivers, health care professionals, educators and anyone else involved in your child’s care together.
Factors Considered by the Court
Both the Divorce Act and the Family Law Act consider what is in the child’s best interests as the paramount factor in determining custody or parenting. Although it typically presumed that it is in the child’s best interests to maximize time with both parents, the following factors may sway parenting time to one parent more than the other. The Court will consider some of the following factors:
1. The history of upbringing and childcare;
2. Who is able to satisfy the child’s physical, emotional and psychological needs;
3. The child’s need for stability;
4. Family violence;
5. The child’s opinion and preferences if appropriate;
Please note that this list is not exhaustive. Many of these factors are interrelated and tied with other factors.
Many issues complicate parenting such as a party not following an existing Parenting Order, or if one parent attempts or has already relocated with the child to another jurisdiction that frustrates parenting.