Parents sometimes refer to a dramatic change in parenting arrangements as a “reversal of custody.”
That phrase remains common in everyday conversation and online searches, but Canadian family law has moved away from the traditional terminology of “custody” and “access.”
Under the federal Divorce Act, the law now generally speaks about parenting time and decision-making responsibility.
Whatever terminology is used, the underlying question remains important:
Can a Court change an existing parenting arrangement so that a child primarily lives with the other parent?
The answer is potentially yes–but significant changes to established parenting arrangements require careful legal and factual analysis.
What Does “Reversal of Custody” Mean?
People generally use the phrase to describe a substantial change where a child who primarily lived with Parent A begins primarily living with Parent B.
It can also describe major changes to parenting time or decision-making responsibility.
The Court does not make such decisions to punish one parent or reward another.
The central concern is the child.
The Best Interests of the Child
Under the Divorce Act, the Court must consider only the child's best interests when making parenting orders.
The Court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Factors include:
- the child's need for stability;
- relationships with parents and other important people;
- history of care;
- views and preferences;
- plans for the child's care;
- each parent's ability to meet the child's needs;
- willingness to support the child's relationship with the other parent;
- ability to communicate and cooperate; and
- family violence
There is no automatic presumption that equal parenting time is appropriate.
Changing an Existing Parenting Order
Where a parent seeks to vary an existing Divorce Act parenting order, additional legal requirements apply.
Generally, the Court must first be satisfied that there has been a change in the circumstances of the childsince the previous order or the last variation of that order.
Once the threshold for variation is met, the Court considers what parenting arrangement is now in the child's best interests.
Can Parental Alienation Lead to a Change?
Potentially.
Serious interference with a child's relationship with the other parent can become relevant to the best-interests analysis.
But allegations alone are not enough.
The Court must determine what is actually happening and whether the proposed change would improve the child's situation.
What About a Child Who Refuses to Move?
The child's views and preferences are relevant, with weight depending upon age and maturity.
That does not mean the child automatically determines the outcome.
In a high-conflict case, the Court may need to consider why the child has expressed the preference and whether those views have developed independently.
Family Violence Changes the Analysis
Parents should be especially cautious about treating every resistance to contact as alienation.
The Divorce Act specifically requires courts to consider family violence and its impact on parenting.
It also requires consideration of coercive and controlling behaviour.
Where safety concerns exist, requiring cooperation or extensive interaction between parents may not be appropriate.
What Evidence May Matter?
Depending upon the case:
- previous Court orders;
- parenting calendars;
- communications;
- school information;
- evidence concerning parenting-time interference;
- professional reports;
- Voice of the Child information;
- parenting assessments;
- evidence of family violence;
- witness testimony; and
- evidence showing changes in the child's circumstances
- may become relevant
Is a Reversal an Emergency Remedy?
Not necessarily.
Some circumstances can be urgent, particularly where immediate safety is involved.
Other applications proceed through the regular family-court process.
Alberta's Family Focused Protocol now affects how family and divorce matters access the Court of King's Bench, so procedural advice is important before commencing an application.
Speak With an Edmonton Family Lawyer About Changing Parenting Arrangements
Changing a child's established living arrangement can have major emotional and practical consequences.
Whether a change is appropriate depends upon the existing order, changes in circumstances, evidence and–above all–the child's best interests.
Ulasi Law Group assists parents throughout Edmonton and Alberta with applications to change parenting arrangements, high-conflict parenting disputes, alienation allegations and parenting-order enforcement.
This article provides general information and is not legal advice.
Frequently Asked Questions
Can custody be reversed in Alberta?
A Court can substantially change parenting arrangements where the legal requirements are satisfied and the resulting arrangement is in the child's best interests.
Does Alberta still use the word custody?
The term remains common conversationally, but the federal Divorce Act now generally uses parenting time and decision-making responsibility.
Can parental alienation cause a parenting arrangement to change?
Potentially, but allegations must be supported by evidence and the ultimate question remains the child's best interests.
Can a child choose not to move?
The child's views and preferences may be considered according to age and maturity, but they do not automatically determine the result.
Is equal parenting time presumed?
No. Parenting time must be determined according to the individual child's best interests.
Can family violence affect parenting time?
Yes. The Court must consider family violence and its impact when determining parenting arrangements.