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Difference between revisions of "Children and Parenting after Separation"
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Children and Parenting after Separation (view source)
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The ''[[Family Law Act]]'' doesn't talk about custody. Instead it talks about the responsibilities and duties of people who are ''guardians''. Generally, parents are guardians. However, not all parents are guardians and a person other than a child's parent can be that child's guardian. | The ''[[Family Law Act]]'' doesn't talk about custody. Instead it talks about the responsibilities and duties of people who are ''guardians''. Generally, parents are guardians. However, not all parents are guardians and a person other than a child's parent can be that child's guardian. | ||
A parent who has never lived with a child can only be a guardian by agreement with the other parent; by | A parent who has never lived with a child can only be a guardian by agreement with the other parent; by ''regularly caring for'' the child; or, by court order. | ||
Courts have interpreted "regularly cares for" as meaning more than occasional visits. | Courts have interpreted "regularly cares for" as meaning more than occasional visits. | ||
There is a case from the BC Court of Appeal, [http://canlii.ca/t/gj15z ''A.A.A.M. v. BC''], 2015 BCCA 220, which found that when the Ministry of children and Family Development | There is a case from the BC Court of Appeal, [http://canlii.ca/t/gj15z ''A.A.A.M. v. BC''], 2015 BCCA 220, which found that when the Ministry of children and Family Development controlled how often a parent could see his child, it was unfair to say that parent had not regularly cared for the child. The Court of Appeal in this case found that a parent’s intention to regularly care for a child who was in the care of the Ministry was enough to make that parent a guardian. | ||
====Parental responsibilities==== | ====Parental responsibilities==== | ||
The actual job of parenting is called the exercise of | The actual job of parenting is called the exercise of ''parental responsibilities''. All guardians and the courts must exercise parental responsibilities and decision-making in the best interests of children. | ||
When parents are living together, they each exercise all parental responsibilities. For instance, either parent may say “yes” or “no” to a play date or either parent may take the child to the dentist, doctor, or school. | When parents are living together, they each exercise all parental responsibilities. For instance, either parent may say “yes” or “no” to a play date or either parent may take the child to the dentist, doctor, or school. | ||
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Like all decisions regarding children, the allocation of parenting time is based on a child’s best interests. the ''Family Law Act'' says that there is no particular parenting plan or arrangement that “is presumed to be in the best interests of a child.” | Like all decisions regarding children, the allocation of parenting time is based on a child’s best interests. the ''Family Law Act'' says that there is no particular parenting plan or arrangement that “is presumed to be in the best interests of a child.” | ||
Parents should not assume that a week on/week off schedule is what is in the best interests of their children nor should parents assume that this type of parenting schedule ''isn’t'' in the best interests of their children. The ''Family Law Act'' reminds parents and the court that each child and family is unique and there is no such thing as a | Parents should not assume that a week on/week off schedule is what is in the best interests of their children nor should parents assume that this type of parenting schedule ''isn’t'' in the best interests of their children. The ''Family Law Act'' reminds parents and the court that each child and family is unique and there is no such thing as a one size fits all parenting plan. | ||
It is also very important to understand that a guardian's parenting time with the children is entirely separate from their obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold parenting time because a guardian missed a child support payment, nor is it ever appropriate to stop paying child support because parenting time has been withheld. The courts do not look kindly on guardians who have engaged in this sort of conduct. | It is also very important to understand that a guardian's parenting time with the children is entirely separate from their obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold parenting time because a guardian missed a child support payment, nor is it ever appropriate to stop paying child support because parenting time has been withheld. The courts do not look kindly on guardians who have engaged in this sort of conduct. | ||
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The theory underlying this concept is that it is disruptive for children to switch homes every week and that it can be too costly to make sure there's a full set of clothing, toys, books and whatnot in both houses. Birdnesting lets the kids stay in a single home, usually the family home that they've grown up in. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain two or possibly three homes: the family home, and a home for each of the parents. | The theory underlying this concept is that it is disruptive for children to switch homes every week and that it can be too costly to make sure there's a full set of clothing, toys, books and whatnot in both houses. Birdnesting lets the kids stay in a single home, usually the family home that they've grown up in. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain two or possibly three homes: the family home, and a home for each of the parents. | ||
Birdnesting is a term that has been created by lawyers and judges, like the term | Birdnesting is a term that has been created by lawyers and judges, like the term ''primary residence.'' Birdnesting is not a term you will find in the ''Family Law Act'' or the ''Divorce Act''. | ||
===Contact under the ''Family Law Act''=== | ===Contact under the ''Family Law Act''=== | ||
Under the ''Family Law Act'', someone who is not a parent or guardian can have ''contact'' with a child. When children are spending time with friends and extended family, they are having | Under the ''Family Law Act'', someone who is not a parent or guardian can have ''contact'' with a child. When children are spending time with friends and extended family, they are having ''contact'' with these people. Agreements and court orders can formalize that contact. | ||
Someone with contact does not have any [[parental responsibilities]] for the child, such as the responsibility for day-to-day decision-making concerning the child. | Someone with contact does not have any [[parental responsibilities]] for the child, such as the responsibility for day-to-day decision-making concerning the child. | ||
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=== Custody and access report=== | === Custody and access report=== | ||
A Custody and access report is a report that is prepared by a neutral third party, usually a psychologist or registered clinical social worker. This is an older term and in most cases, the courts will be making an order for a | A Custody and access report is a report that is prepared by a neutral third party, usually a psychologist or registered clinical social worker. This is an older term and in most cases, the courts will be making an order for a ''section 211 report,'' which is a report prepared pursuant to section 211 of the ''Family Law Act''. | ||
The B.C. Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The Court's comments apply just as well to reports prepared pursuant to section 211 of the ''Family Law Act'': | The B.C. Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The Court's comments apply just as well to reports prepared pursuant to section 211 of the ''Family Law Act'': | ||
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===Section 211 reports=== | ===Section 211 reports=== | ||
Section 211 of the ''[[Family Law Act]]'' allows the court to order an assessment of the needs of a child, views of a child, and the ability of a party to meet those needs. A section 211 report can be limited to one enquiry or be a full report including an assessment of all three areas (a | Section 211 of the ''[[Family Law Act]]'' allows the court to order an assessment of the needs of a child, views of a child, and the ability of a party to meet those needs. A section 211 report can be limited to one enquiry or be a full report including an assessment of all three areas (a ''full'' section 211 report). | ||
Section 211 reports must be in writing and the court can make orders as to who will prepare the report and how the report is to be paid for. | Section 211 reports must be in writing and the court can make orders as to who will prepare the report and how the report is to be paid for. | ||
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===Views of the child reports=== | ===Views of the child reports=== | ||
There is confusion between a | There is confusion between a ''Views of the child report'' (which is a section 211 report) and a ''Voice of the child'' or ''Hear the Child Report''. | ||
Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented. | Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented. | ||
Third parties can interview a child and prepare a | Third parties can interview a child and prepare a ''Views of the child report'' or a non-evaluative ''Hear the Child Report''. | ||
A Hear the Child Report presents a child’s views to the court. In British Columbia, the [http://www.hearthechild.ca Hear the Child Society] has a roster of interviewers who prepare non-evaluative reports. | A Hear the Child Report presents a child’s views to the court. In British Columbia, the [http://www.hearthechild.ca Hear the Child Society] has a roster of interviewers who prepare non-evaluative reports. | ||
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Non-evaluative reports do not evaluate the responses of the child, they merely report what the child says, and often give some indication of what the child is doing as they talk. The child is not simply asked what they want between their parents. They are asked a wide ranging list of questions designed to give a good picture of what life is like for them, and where the problems may be. | Non-evaluative reports do not evaluate the responses of the child, they merely report what the child says, and often give some indication of what the child is doing as they talk. The child is not simply asked what they want between their parents. They are asked a wide ranging list of questions designed to give a good picture of what life is like for them, and where the problems may be. | ||
A | A ''Views of the child report'' may contain opinion and recommendations in addition to communicating a child's views. | ||
==Children's caregivers and extended family== | ==Children's caregivers and extended family== | ||