Child custody issues can become the most emotional part of your divorce. It’s quite common for clients to ask us whether or not it’s feasible to get full custody of their children.
Here’s everything you need to know about how child custody works in Alberta.
Terms To Understand
Before we begin, it’s important to understand some child custody terms.
Legal Custody is the term for decision-making power over a minor child. That is, the person with legal custody has a legal right to make day-to-day decisions for the minor. That person also has the right to make religious, educational, and medical decisions for the child. Legal custody goes to one parent or may be shared.
Physical Custody is the term that describes the person who lives with the child most of the time. Again, physical custody may go to one parent or may be shared by both parents.
When people speak of sole custody or full custody they generally mean that they intend to have sole legal and physical custody over their children. In reality, this is the rarest custody arrangement.
Joint legal and physical custody is the most common custody arrangements. This is an arrangement where the child or children live with each parent at least 40% of the time, and where both parents have legal custody of their children.
Joint legal and sole physical custody is the next most common arrangement. In this arrangement, both parents retain decision-making power but the child stays with the other parent less than 146 days of the year.
Split custody refers to an arrangement where one parent has sole physical custody of some of the children and the other parent has sole physical custody of the other children. It’s even rarer because courts like to keep children together but can happen either when the children have expressed a preference or when there is some other good reason for the split.
Full custody is the rarest scenario of all because it essentially strips the other parent of their parental rights. It only happens in cases where the other parent is a proven danger to the child: they’ve been abusive or neglectful, have a proven drug abuse problem, have a severe mental health problem, are living in a household where those problems exist, or are incarcerated.
Why Most Judges Don’t Grant Sole Custody Most of the Time
In Alberta, both parents are considered to have a legal right to a relationship with their children.
In addition, children have a legal right to a relationship with their parents. It’s generally not considered to be in the best interests of the child most of the time.
You may be suspicious of your former spouse.
Or You may be afraid to let your child spend time with your former spouse.
You may disagree with how your former spouse parents your children.
You may not like the people your former spouse lives with now.
Yet unless your child is in clear and present danger from your former spouse, there is almost no way to convince a judge to grant sole custody.
What It Takes to Get Sole Legal and Physical Custody
To get sole legal and physical custody you must be able to provide proof that the spouse is a danger to your child.
This could include:
- Police reports from former domestic violence incidents.
- Any restraining orders you’ve failed, or a successful emergency removal order that took your spouse out of the family home.
- Hospital records show a severe, debilitating, or disabling medical problem.
- Proof that people living with your spouse are engaged in criminal, violent, or drug-related behavior.
- Proof that your spouse has failed to provide proper guidance, care, or support.
- Evidence Child Welfare Services has been involved in your child’s parenting.
- Evidence your spouse cannot or will not set age-appropriate limits.
Courts may also involve a child custody evaluator who can determine whether a parent’s conduct puts a child’s safety at risk.
One of the criteria judges also look for is a willingness to foster a relationship between your child and the other parent in the past. If you try to push for sole custody without solid evidence that there is a problem your attempt could backfire and the other parent could end up with custody.
In addition, fighting for sole custody when you are unlikely to get it is a good way to increase the costs of your divorce. It’s better to be realistic about the custody arrangements you’re likely to end up with and to get on with the business of working out a schedule unless keeping your child from your ex is literally a matter of life and death.
What To Expect from Sole Legal and Physical Custody
It’s important to have realistic expectations.
In the event that you are able to get your ex declared unfit and receive sole physical and legal custody of the child, you don’t get to ride off into the sunset without ever seeing your ex again.
Your ex will still get visitation time. The court might order that it’s supervised visitation time and that the supervisor will be an approved professional who gets paid to watch over your child, but your child is still going to get to see their parent no matter how toxic that parent is.
Fortunately, you can rely on these parents to keep your child safe. That’s what they’re there for and they’re very good at it. Most parents are on their best behavior when someone is watching them.
But there will never be a time when the court will approve your right to completely remove that child from your ex’s life. Your ex might choose not to exercise those parental rights, but the other parent will always get some form of visitation. You will still have to seek court approval to move too far away from your ex or to make big, sweeping changes that can impact your custody arrangement.
Need Help With Your Custody Battle?
There are some instances where fighting for custody is your only sane move.