Reaching a joint custody agreement in an Alberta divorce

This article discusses the aspects considered by the court during custody and access matters, including all intricacies related to the ‘best interests of the child’.

When Alberta couples with children decide to divorce, their primary concern more than likely surrounds what will happen with the children. Each parent may want to have as much time with the children as possible. Traditionally, one parent retains custody of the children while the other receives access to the children.

However, these days, most parents prefer to design their own joint custody arrangements instead of letting the court make the decision on behalf of their families. Parents wish to create their own plan in order to tailor it to the specific needs of the family. Parents may do so, but the court retains the final approval of such a plan. Therefore, it may be beneficial to understand how the court reaches its decisions.

The difference between custody and access

The parent with custody of the children retains the right to make major life decisions on behalf of the children regarding welfare, health, religion and education. He or she also retains the right to care for the children's physical needs. The parent with access to the children may request and receive information regarding the major life decisions affecting the children, such as welfare, health and education, and receives visitation with them as well.

Joint custody is more common now

Unless the court finds otherwise, the majority of parents receive joint custody of the children. Parents may decide to share parenting time as close to equal as possible, or one parent may have physical custody of the children while the other parent receives liberal and generous access to the children.

In either case, the parents share the responsibility of making those major life choices for their children. Day-to-day care decisions remain the responsibility of the parent with physical custody for the most part.

The factors the court considers in custody and access decisions

Courts use the "best interests of the child" standard when making decisions regarding custody and access. The factors that contribute to these decisions include the following:

· Which parent took primary responsibility for the children's care during the marriage?

· Which parent best fulfills the children's need for stability? This may vary depending on the maturity level and age of each child.

· Have the parents offered any plans for raising the children post-divorce?

· What is the nature of each parent's relationship to each child?

· What are the religious, cultural, spiritual and linguistic components of the children's lives that affect their upbringing?

· Do the children wish to express their preferences and views on custody and access?

· What views and preferences does each parent have regarding custody and access?

· What arrangement serves the children's psychological, physical and emotional well-being and safety best?

· Is there any history of family violence?

· Are there any criminal or civil proceedings involving the safety and well-being of the children that may affect custody and access?

· Can the parents adequately communicate with each other regarding the children?

The ability of the parents to work together in order to continue raising their children together is of paramount importance, especially if joint custody is the preferred arrangement. Moreover, the court may choose to consider other factors unique to a particular family.

Using these factors to create a joint custody agreement

When creating their own plans, parents may want to ensure that they cover these factors in any plan they negotiate. This provides the basic outline of the joint custody agreement, and the parents may fill in the details as they choose. As long as the court believes the arrangement serves the best interests of the children, it should grant its approval. The chances of successfully receiving the court's approval may increase with experienced assistance and support.