In BC, the most common type of custody arrangement for children following a divorce or separation is joint custody, also known as a shared parenting agreement. Yet despite its prevalence, many people find themselves wondering: Who can make decisions for children when there’s joint custody?
This comes as no surprise, of course – parental separation marks a period of uncertainty where everything once known goes into limbo. So in this week’s blog, we’ll take a look at what joint custody means in the eyes of the law, and how parents can come together to make sure both parties have a say in the important decisions that shape their children’s lives. We’ll also discuss what happens when disagreements do arise.
Redefining Joint Custody & Who Makes the Decisions
In BC law, the Family Act distinguishes between custody, now termed “guardianship”, and access, now “parenting time”. Let’s take a closer look at how those two concepts affect decision making:
Guardians have parental responsibilities, meaning they have authority to make important decisions about their children, and the right to know this information. This includes decisions around the child’s
- living circumstances
- health and welfare
- education
- culture
- language
- religion/spirituality
- significant extracurricular activities (e.g. what sports they participate in)
With joint guardianship, both parents have a say in these crucial aspects. Whether that means coming to a shared agreement or compromising on certain issues, all decisions must be based primarily around the best interests of a child. Part and parcel to this is the willingness of both parties to be cooperative, supportive, and maintain open lines of communication with one another.
Parenting time is just like it sounds. It defines the amount of time a child spends with each parent, which is usually scheduled out and agreed upon together, or alternatively set by the court. During parenting time, each parent can make day-to-day decisions about their child, such as choices surrounding meals, activities, and bedtimes.
Federal laws follow suit: As of March 1, 2021, the federal Divorce Act replaced “custody “ with the terms “decision-making responsibility” and “parenting time”, similar to the language found in the BC Family Law Act. This shift conveys the vast array of living circumstances that can work for co-parenting situations, and ultimately points to the fact that “family” is a fluid concept.
Best Practices for Decision Making in a Joint Custody (Guardianship) Case
At the time of separation, it is vital to establish a framework for decision making, parenting time, and what to do when conflicts arise. There are bound to be some differences in opinion that pop up over the course of parenthood, so having a plan is your best defence against further riffs that cause undue stress and turmoil – not just for the co-parenting relationship, but for the child too.
As experts in family law, we recommend creating a written parenting agreement. This living document keeps everyone on the same page from the start of the separation process, ensuring complete understanding of how parenting responsibilities will be distributed. As the Family Law Act states, it’s key this plan be made at, or after, the time of separation, as children’s needs change over time and it’s impossible to know how circumstances will evolve. Parenting agreements can be made with or without a lawyer, and may be filed in BC’s court registry for enforcement.
Disagreements in Decision Making in a Joint Custody (Guardianship) Case
In the unfortunate circumstance where significant disagreements arise in a joint guardianship and decision making scenario, there are several avenues for resolution available:
Outside of the court, agreements can be reached through negotiation. This can happen with or without a lawyer present – a factor that generally depends on the nature and severity of the riff. Collaborative negotiation involves each parent hiring a team of specially-trained lawyers (like the ones at Westside Family Law), and agreeing to keep matters out of the court. For a deep dive on the collaborative divorce process, check out this blog.
Another approach is mediation or arbitration. In mediation, parents meet with a neutral third-party (called a mediator) to talk out their differences and find a solution that works for everyone. BC offers the service of trained mediators (family justice counsellors) for free, or a private mediator can be hired. Arbitration similarly involves a neutral party. Like a judge, a family law arbitrator listens to both sides and makes a decision that is legally binding.
Parenting coordinators are qualified under the Family Law Act to resolve disputes through consensus building and/or determination. Like arbitrators, parenting coordinators make legally binding decisions. You can learn more about parenting coordinators in our recent blog.
If those options are exhausted, parents can ask the court to decide. Again, decisions will be based on what’s best for the child, as is the same for all of the above scenarios.
Here to Help
Have questions about child custody arrangements and decision making, need help creating a written parenting agreement for joint guardianship, or want to resolve a dispute? Contact us today to get in touch with one of our family law experts – our team is standing by to ensure you and your child’s best interests are taken care of.