Child Custody and Parenting: The Legal Terms

The Legal Terms

What are the legal words that explain parenting?

Each law uses its own words to define the relationship between you and your children, and you and your former partner. The Divorce Act uses custody and access, while the Family Law Act uses guardianship, parenting, and contact.

The Divorce Act and Parenting

Custody means the ability to make daily and major decisions about the child.  There are different ways that custody can be arranged.

Access means the time that the child spends with a parent who does not have primary care of the child.  A parent with only access does not usually have a say in major decisions about the child.

Custody is a term under the Divorce Act and means the ability to make daily and major decisions about the child, and where the child will live. Access is a term under the Divorce Act and means the time that the child spends with a parent who does not have custody. A person with access has the right to make inquiries and be given information about the child. If someone who is not a parent wants to spend time with the child, then they can apply for contact.

 

Joint Custody is the most common arrangement between parents. Sole custody is rare and usually only granted in exceptional circumstances (for example, if a child is being abused or neglected by a parent).

The Family Law Act and Parenting

The Responsibilities of Guardianship

Both parents may be guardians of a child. Guardians are responsible for the care and well being of the child. Guardians are responsible for:

  • making daily decisions about the children;
  • supervising daily activities of the children;
  • deciding where the children will live;
  • deciding who the children can have relationships with;
  • making decisions about the children’s education;
  • making decisions about the children’s extra-curricular activities;
  • deciding the children’s cultural upbringing;
  • deciding the children’s religious and spiritual upbringing;
  • deciding if the child should work and other employment matters;
  • consenting to the child’s medical treatments;
  • granting consent when a guardian’s consent is required;
  • receiving and responding to any notices that a guardian is entitled to receive;
  • dealing with any legal proceedings relating to the children;
  • appointing someone to act on the guardian’s behalf in an emergency situation or when the guardian is temporarily absent;
  • receiving health, education and other information that affects the child; and
  • exercising other powers necessary to carry out the responsibilities of guardianship.

 

Guardian is the person who is responsible for the care, maintenance and well-being of the child, and they have powers, responsibilities and entitlements under the Family Law Act.

Do all children have guardians?

In Alberta, every child has a guardian unless the child has married or become an adult interdependent partner.

Can a child have more than two guardians?

Yes, a child can have multiple guardians at the same time. A child’s guardian does not have to be the child’s parent.

Who can apply to become a guardian?

You can apply to become a guardian if you are:

  • the child’s parent but not a recognized guardian, or
  • an adult who has had care and control of the child for more than six months. You usually have to be from Alberta, or ask for special permission for the residency requirement to be waived.

If you don’t know if you are a guardian, take the test below to find out.

Click on Image to View Full Size.

Legend:
You are the child’s guardian
You are not the child’s guardian
You might be the child’s guardian. You should seek legal advice.

For more information, go to our Families and the Law:  Child Welfare Series – Parent or Guarding Tip Sheet.

 

 

What Can Guardianship Look Like?

Javier and Maria were married for a long time and they have one child together. Both parents are very involved in the child’s life, and the child divides his time equally between the parents. Maria and Javier work together to make decisions for their child.

Who are the guardians?

Javier and Maria

Who makes decisions for the child?

Javier and Maria

Kristy and Tom lived together for a year and had a baby. Tom acknowledged that he was the child’s father, but he works out of town and hasn’t been involved with the child that much. He only sees the child once or twice a year. Kristy wants to be able to make all of the decisions for the child without needing Tom’s consent. She applied to change the responsibilities of guardianship. Now she has a court order that says she can make all of the decisions for her child, and does not need Tom’s consent. Tom’s only right is to receive information about the child.

Who are the guardians?

Kristy and Tom

Who makes decisions for the children?

Kristy

Yolande and Martin are both 16 years old and they just had a baby. Yolande lives with her mom, Wendy, and the baby. Wendy helps with the baby a lot and takes the baby to doctor’s appointments and to daycare. They all decide together that it would be a good idea to have Wendy be the baby’s guardian too, since she is so involved with the baby.Who are the guardians?
Yolande, Martin and WendyWho makes decisions for the child?
Yolande, Martin and Wendy

Ashley and Joshua have a very brief relationship. Ashley gets pregnant and has the child. Joshua doesn’t believe that he is the father, and he doesn’t want anything to do with Ashley or the child. He’s angry when the paternity test proves that he is the father. Ashley applies for sole guardianship, and Joshua doesn’t fight her application so the judge orders sole guardianship. Joshua is ordered to pay child support.

Who are the guardians?

Ashley

Who makes decisions for the child?

Ashley

Contact occurs when someone who is not a guardian spends time with the children. This could be a parent who is not a guardian, or other family members, like grandparents. It is important for children to continue to have significant relationships with family members. People who are not guardians do not get to make decisions about the children’s lives, and are not responsible for the well-being of the children.

The contact that can be asked for might be physical contact (visiting in person), or contact by phone, email or through some other means (like skype).

What is a parenting plan?

A parenting plan is an agreement about where the children will live, how you and the other parent are going to look after them, and how you are going to make decisions for them. The plan should focus on what is best for the children rather than just what you and the other parent want to happen. A good plan is easy to understand and lets everyone know what is expected of them.

Your parenting plan should answer a lot of questions about the children.

Contact is when someone who is not a guardian spends time with the children and is a term used in the Family Law Act.

Non-parents need to ask for a judge’s permission before making an application for contact with children. Grandparents don’t have to ask permission if the parents are the children’s guardians and:

  • The parents are living separate and apart, or one of them has died; AND
  • The contact between the children and the grandparent has been interrupted because of the guardians’ separation or because of the death of the guardian.

Parenting Plan Checklist

  • How will the guardians make decisions about the children? What about big decisions, like where the children will go to school, or consenting to medical treatment?
  • Who will the children live with?
  • What time will the children spend with each guardian? Do you have a schedule?
  • What time will the children spend with other people? Will the children have specific days when they can visit grandparents and other family members?
  • What activities will each guardian do with the children? Before enrolling the children in any activity, will you talk to each other?
  • What events will both guardians attend? Will you both attend school events? Sporting events?
  • How will the children stay in touch with the other guardian? If the children are with the other guardian, how are you going to communicate with the children? By phone?Email? Skype? Are there specific times when this communication can occur?
  • Where will the children stay during statutory holidays? Birthdays? Mother’s and Father’s Days? Christmas? School holidays? Summer vacation?
  • What happens if one guardian wants to move? Does that guardian have to give notice? How much notice?
  • What process will the guardians follow if there is a disagreement, or if one guardian wants to change the parenting plan at a later date?

Parenting plans will usually have to change as the children grow up. You will need to make changes a few times to accommodate the needs of the children.Parenting plans can be temporary or permanent. Sometimes a temporary plan is called an “interim parenting plan.”

If your children spend more time with the other guardian, it doesn’t mean that you love the children any less, or are less important to the children.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. March 2018.
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