The best evidence for child custody may consist of a number of elements which your child custody lawyer will help you to compile. It takes a lot for a parent to lose custody in BC. Although the BC Family Law Act has done away with the word “custody” and instead talks about guardianship, parental responsibilities, and parenting time, when we reference the word “custody” we are really referring to the legal decision-making authority for children by one or both of their parents.
So, if you are a parent looking for sole custody v. joint custody of your children, you are going to want to know what is the best evidence for child custody in BC.
Contrary to popular belief, when getting custody of a child, parents are not expected to be perfect people.
As parents, we can make some pretty big mistakes, but when it comes to getting sole physical custody of a child, those mistakes have to be pretty significant if you live in BC.
The BC Family Law Act assumes that kids are entitled to be raised by their parents, that is, both of their parents, as long as their parents can be effective guardians (aka parents) for their kids. Child custody lawyers know this and they will be able to guide you through the process of deciding what is in the best interest of your children.
Now, going back to not having to be perfect, in over 25 years, our law firm has only seen two cases, yes, that is all, just two cases where a parent lost custody of their kids. In both of those cases, they not only lost custody but also were not able to have any parenting time with their kids whatsoever. What on earth would cause a judge to say a parent should not have any time with their kids?
In one case, it was because the father was hell-bent on turning the child against his mother (parental alienation against mother, which is a form of child abuse). In another case, it was because of extreme family violence that happened in front of the children.
So, before we dive into the best evidence for child custody, looking at how a parent can lose custody will be very informative for you. In BC Family Law, the focus is on the best interests of the child, not parental rights after divorce. Sometimes parents do not understand that.
How to lose custody: let us count the ways in BC
For a parent to lose custody of a child and, more significantly, not have time with their children, there has to be a pretty significant reason, at least if you are a resident of BC.
Here are some ways the courts may award sole custody v. joint custody to a parent. Remember though, no matter what, the Family Law Act of BC always requires that any orders relating to parenting and custody are based upon the best interests of the child.
However, here we mention court orders as opposed to agreements because when it comes to losing custody, it is less often that a parent would agree, and more often a court would award it upon an application by one parent. Parents, for obvious reasons, do not give up custody of their children easily.
The best evidence for child custody based upon how to lose custody -
some examples in BC
1. Is parental alienation abuse?
Parental alienation is indeed a form of child abuse. It is that serious.
What is parental alienation? It is when a parent, intentionally or by accident, manipulates or coerces a child to have a negative attitude toward the other parent.
If a party wants to know how to lose custody (and let’s face it, parents do not want to do that), they will engage in parental alienation. They will try to turn their kids against the other parent.
In one of the two cases our law firm had where a parent not only lost all custody (that is, decision-making) but all parenting time with his child, it was because of parental alienation. In the case we dealt with, the father went so far as to draw diagrams with the child setting out all of the mother’s faults and wrongdoings (at least according to the Dad). The best evidence for child custody, in this case, was a huge amount of evidence showing that the Dad could not simply enjoy parenting his child, but could not, for the life of him, let his resentment of the mother go.
The best evidence for child custody related to parental alienation is knowing how to prove parental alienation and how to find documentary evidence thereof. In the one case we had, our evidence came from the father himself. He not only showed the judge the many charts and graphs he made with the child outlining the mother’s faults, but he provided recordings of him coaching the child.
2. How to lose custody through abuse or neglect
Even if a parent has a history of physical or mental abuse, it does not necessarily mean they will lose custody of their child. If abuse or neglect is proven and a parent demonstrates remorse and gets specific counselling or improves their parenting skills, they will likely not lose decision-making authority or, after a period of time, perhaps, their parenting time.
It is when the parent continues to engage in abuse or neglect that ends up them risking losing custody or parenting time.
Abuse or neglect examples are when a parent leaves a young child unsupervised for lengthy periods of time, or when they fail to keep them out of dangerous situations. Sadly there are many examples of neglect. Sometimes a parent can be considered neglectful, for example, when they refuse to leave an abusive partner and expose their child to repeated family violence.
The best evidence for child custody when dealing with abuse or neglect will often come from the child. In BC we have “hear the child” and “voice of the child” reports where the child can describe their experiences with their parents. These reports are done by professionals specifically trained to speak to children in a non-threatening and non-directive way.
3. Domestic violence and child custody
Domestic violence and child custody is no joke. However, first, let’s say a word about domestic violence. Sometimes people think that if a child only witnessed domestic violence, that it is not as damaging as if they were the physical victims of domestic violence. Nothing can be farther from the truth.
Witnessing domestic violence is child abuse.
Now that we have that out of the way, note that there are many types of domestic violence. Domestic violence can include physical violence, but may also include sexual interference, verbal abuse, and coercive controlling behaviour by a parent.
The best evidence for child custody when it comes to domestic violence will likely come from police reports, medical reports, or reports from child welfare authorities
In BC we call them the Ministry for Children and Family Development. Although not all domestic violence is reported to authorities (and most is not), there will likely be some kind of report somewhere if domestic violence is a pattern in the home.
Failing a third-party report, the evidence can come from one of the parents in their direct testimony or evidence or, from the child if they are interviewed for a hear the child or views of the child report which is conducted utilizing section 211 of the BC Family Law Act.
If you or your children are experiencing domestic violence, you might want to consult with a lawyer right away to get a temporary custody order (or protection order) that will ensure you and your kids stay safe while you navigate the separation and divorce process.
On the other hand, if you are being falsely accused (and, sadly, at our law firm, we have seen this happen on more than one occasion), you might want to get a character letter for child custody. We recall one client that was accused by the mother of abusing the children. Because the client was able to produce not just one character letter for child custody, but many of them, the welfare authorities questioned the mother’s motives and got to the bottom of the truth.
4. Substance abuse or addiction in Divorce and Custody
If a parent struggles with substance abuse or addiction, and it impacts their ability to parent their children effectively, the other parent might want to consider the best evidence for child custody in the circumstances.
When a parent struggles with substance abuse or addiction, the evidence may come as a result of child welfare authorities being involved, a hear the child report, or direct evidence from the other parent. Sometimes parties agree, or there is a court order, that a parent is tested for illicit substances via urine screening or hair follicle testing.
It is important to know that just because someone struggles with substance abuse or addiction, it is not a sure way of how to lose custody in British Columbia. Sometimes parents develop a safety plan that includes them not using substances while parenting their children, or they have an agreement to attend a treatment centre, or they agree to attend weekly support meetings. In many cases, the parents simply agree not to use substances while the children are in their care. Child custody laws are clear, that children get to have a meaningful relationship and be parented by both of their parents, unless it is against their best interest. As we said, it takes a lot to lose custody.
5. Sometimes, a parent can’t do the job of parenting
One of the really saddest circumstances is when a parent, despite all of their best intentions, cannot do the job of parenting. This might be because of a mental illness, or a physical limitation. For example, at our law firm, we represented a parent who was diagnosed with multiple sclerosis. Although she loved her child deeply, she was unable to parent him as much as she wished (although they still had a relationship) because she did not have the physical capacity to be an active and involved parent.
6. Does a child have a say about custody
As with many areas of BC Family Law, there is a lot of misinformation out there. For example, a lot of folks believe that once a child turns 12 years old, they get to decide where to live. There is no magical age where a child’s views are determinative of where they will live.
While the BC Family Law Act states that children should be consulted regarding their proposed living arrangements, their views are not necessarily the sole determining factor. In short, a seven-year-old does not get to choose which parent to live with. They do, however, get to speak to a third party professional (a “hear the child” or “voice of the child” report) and advise what they like and do not like, or what they wish for regarding the experience they have of their parents.
As child custody lawyers, we are often fascinated by what kids have to say in these reports. We have seen it more than once where kids make it clear that they just want their parents to stop fighting all the time!
The best evidence for child custody when it comes to a child’s opinion is just that, their own words.