Child Custody Agreements

Child Custody Lawyers in Calgary

Child Custody Agreements in Calgary

When you are going through an emotional divorce and trying to work out what’s best for your children, it can be a challenge to think clearly and make the important decisions that will affect the rest of your lives.

It helps to be able to consult with a divorce lawyer who is familiar with the family law system here in Alberta.

The team at Jennings Family Law can help you formulate a parenting plan that is agreeable to both parents and, most importantly, in the best interests of your child(ren).

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How do I make sure my parenting plan complies with Alberta law?

Family law cases in Alberta are held in either the Court of Queen’s Bench or the Provincial Court.

Alberta law follows family law around Canada and places the best interests of your child(ren) at the heart of all decisions regarding their future.

While divorcing couples must follow the provisions of the federal Divorce Act, the Alberta Family Law Act, which as enacted in 2005, sets out specific guidelines for parenting issues.

In the context of parents separating, the act makes provisions for the children when matters such as guardianship, child support, and parental contact arise. 

These details can help you arrange a legally binding parenting plan. However, they are complex matters that require a clear understanding of the act in order to meet the provisions it contains.

It is inadvisable to draw up your own parenting plan or custody agreement without the assistance of a skilled lawyer. Your agreement may not comply with regulations, in which case it will not be accepted by the Alberta Court and this will delay decisions and create complications.

The assistance of an experienced child custody lawyer will result in a parenting plan that holds up in court.

What are the “child’s best interests”?

At the centre of your parenting plan, you must be able to show that the proposed arrangements are in the “child’s best interests”.

In Alberta, this means following the criteria laid out in the Alberta Family Law Act, which the Court will assess before approving your parenting plan.

The court will assess the following factors:

  • How best to meet the child’s needs for physical, psychological, and emotional safety 
  • Whether there are any special needs of the child
  • The child’s general wellbeing
  • The level of care that the child has received in the past at home – from both parents
  • The nature of the child’s existing relationship with both parents
  • Whether the child has been exposed to abuse or family violence and, if so, its impact 
  • The child’s general upbringing with regard to cultural, spiritual, and linguistic development
  • The custodial preferences of the child, if any (providing the child is of an age to make a judgement)
  • The ability of each parent to provide for the child and look after their care requirements
  • Whether either parent has any civil or criminal proceedings against them that may impact parental abilities
  • The relationship between the two parents and whether this poses any risks to the child in a custody arrangement

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How to determine if sole custody is right for my child 

In Alberta, options of “sole custody” (also known as “full custody”) and “joint custody” exist. 

The Court prefers joint custody, if possible, as this means that both parents will be involved in making the key decisions for the upbringing of their child.

In certain cases, joint custody might be seen as risky for the child as one parent is “unfit” to parent. Sole custody may be preferable as an unavoidable consequence of circumstances. 

However, these decisions are never taken lightly. If you are proposing sole custody, it may involve a long legal battle in the Alberta courts. Full custody will normally only be awarded if it can be shown that:

  • One parent has a history of mental illness
  • One parent has a problem with alcoholism or is a drug abuser
  • There is a history of domestic abuse in the family
  • One parent has significant financial problems that would negatively impact the child

Sometimes, the decision is made for sole custody based on the relationship of one of the parents with a new live-in partner who is deemed unfit to parent.

What should an Alberta custody agreement include?

There are a few basic areas that any Alberta parenting plan should cover. Most important of these are:

  • An overview of custody arrangements
  • An access schedule demonstrating how parents will divide time with the child
  • Provisions for holidays, vacations, weekends, etc.
  • A summary of how your parental responsibilities toward your child will be divided 
  • A proposed resolution process for any disputes
  • Any other details that demonstrate how the best interests of your child will be met

Does marital status affect Alberta guardianship?

If you parent a child in Alberta, you are almost always granted automatic guardianship of your child whether you’re married or not.

You automatically receive guardianship (unless overridden by the Alberta court) if:

  • You marry before or after the birth of the child
  • You are a single mother
  • You are a single father who cohabits with the other parent for at least twelve months, with the child being born in that time frame, or you have lived with the mother permanently from when the child was born 

There are some other noteworthy provisions under Alberta law that affect guardianship. Some of these include:

  • Single parents must meet at least one of the above qualifications to retain guardianship of the child even if they no longer live with or have a personal relationship with the other parent
  • Once a child has lived with a parent for a year, that parent has permanent guardianship 
  • Both parents can retain guardianship even if the child primarily lives with only one of them
  • Guardianship can also be obtained by application to the Court (e.g., by grandparents)

Can we leave it to the Alberta court to decide on child custody?

The Alberta court’s preference is for parents to work out mutually agreeable custody agreements – even if this means attending family mediation sessions.

If this proves impossible, you can petition the court to create your parenting plan or to make decisions on key elements within it. 

However, bear in mind that the Court decisions may not be in your favour as they will only consider the best interests of your child without really knowing your child or the true nature of his or her relationship with you.

As a general rule, it is best for you and your spouse to work on a parenting plan with your lawyers or a mediator present and to reach mutually beneficial agreements that way.

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