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Family Law Blog

My Former Spouse is Making Bad Decisions, Can I Get Sole Custody (Guardianship)?

My Former Spouse is Making Bad Decisions, Can I Get Sole Custody (Guardianship)?

When it comes to parental separations and family law, judges typically see joint guardianship (previously a similar concept was termed ‘custody’ in the Divorce Act, and that is the term many people may be more familiar with) agreements as in the child’s best interest. However, there are certainly scenarios where sole guardianship is ordered, especially if one party is deemed unfit to parent. If you’ve found yourself wondering, “Can I get sole guardianship for my children if my spouse is making bad decisions?”, this blog is for you. 

Below, we’ll discuss how BC law decides guardianship, and the scenarios that warrant a judge to grant one parent sole guardianship of their children. We’ll also talk about what factors would not work, and might run counter to your own case. Finally, we’ll touch on what to do in an emergency situation. 

Guardianship Arrangements - Deciding Factors 

(Note: As of March 2021, the Federal Divorce Act now defines what many people may think of as “custody” and “access” by the terms “guardianship”, “decision-making responsibilities” and “parenting time”, consistent with the BC Family Law Act. For more information, check out this blog.

As mentioned prior, the court’s decision rests wholly upon what’s in the best interest of the child. That means considering their physical, emotional, and psychological safety and well-being above all else – including the parents and vested third parties. By considering each caregiver’s character, material conditions, and capacity to parent – alongside other factors like the stability of their living circumstances and the child’s own opinion (the significance of which typically increases as a child gets older) – the judge will come to a decision. Typically, most people’s circumstances will support some form of a joint guardianship arrangement as being in a child’s best interests. 

In general, the court must have some pretty serious concerns about a parent's lifestyle, behaviour, and treatment of their child to actually deny a parent guardianship or strip them of it. Such situations may include:

  • A parent abandons or severely neglects their child;
  • A parent is physically or mentally abusive to their child; or
  • A parent is incapable of parenting adequately due to physical/mental illness, including substance use.

So if by poor decision making, you mean the co-parent is continuously behaving in a way that puts a child in clear physical danger, sole guardianship may be granted by a temporary and/or permanent court order, but typically only if less drastic remedies are ineffective. Resultantly, any and all reasonable concerns should be shared with the court. 

Keep in mind that all must be proven in a court of law by evidence. For example, there are high legal barriers that must be met to determine whether “abuse” or “alienation'' is actually happening. Let’s dig into this further…

Factors that do not warrant sole guardianship

Separations are fertile ground for high-strung emotions, but it should go without saying that parenting disagreements do not warrant sole guardianship orders on their own. Sufficient evidence must be provided that clearly shows at least one of the above conditions have been met. For example, if one parent does not want their child to be introduced to a co-parent’s new partner, but has no way of proving said person is a danger, sole guardianship is unlikely to be awarded. The same goes for families and other close contacts. 

Additionally, a parent’s past conduct and poor decision-making will not be taken into account unless it is directly relevant to their current decision-making parental responsibilities and/or parenting time (i.e. you can’t bring up their shoplifting record as a way to convince the judge into granting sole guardianship).

It’s also extremely unwise to talk poorly about a co-parent – especially to the child – or hold a grudge, as these can be seen as “alienating” in themselves.

The bottom line is: It’s never a good idea to unilaterally act in a way that deprives the other parent of rights under the legislation or a court order. Doing so puts you in violation of the law, and can negatively affect your chances of success with future court claims respecting the children. All of the above issues are better dealt with through the proper channels, including mediation, negotiation, or court, as appropriate for your circumstances. 

Extreme Circumstances 

If a co-parent poses a serious threat to your child and you are worried about their safety in that parent’s care, you may be able to defend a decision to keep the child safe in the more immediate circumstance; however, where possible and as soon as possible, it’s best to go to a court and get an emergency (or interim) order to alter parenting arrangements. It may also make sense to contact the BC Ministry of Children and Family Development or a delegated Indigenous agency. 

Here to Help

Have further questions about child custody? Want an expert’s opinion on what warrants the revisitation of custody rights? Get in touch with one of our family law experts today to learn more.