Best Interests of the Child in BC: The Section 37 Factors That Decide Custody

Every custody decision in British Columbia comes back to one test: what serves the best interests of the child. It's not about what's fair to the parents. Section 37 of the Family Law Act spells out exactly what judges consider — and understanding these factors shapes how you prepare your case, draft your parenting plan, and present yourself in court.

The Overriding Principle

Section 37(1) says that agreements and court orders about guardianship, parenting time, and contact must consider only the best interests of the child. There's no presumption that equal time is best. No automatic preference for mothers or fathers. The court looks at each family individually.

The Specific Factors (Section 37(2))

Judges evaluate all relevant circumstances, but the FLA highlights these factors:

The child's health and emotional well-being. Physical safety is the baseline, but emotional security matters just as much. A child who's anxious, withdrawn, or acting out in one home is evidence the arrangement isn't working.

The child's views. BC courts must consider the child's own preferences unless doing so would be developmentally inappropriate. There's no magic age — a mature 9-year-old's views carry weight, while a 14-year-old who's clearly been coached might not. Courts sometimes use a Voice of the Child report to hear from the child without putting them in the middle.

The history of caregiving. Who did the day-to-day work before separation? Who handled school pickups, doctor appointments, bedtime routines? Courts look at the actual caregiving track record, not promises about the future.

The child's need for stability. Continuity of school, community, friendships, and routine matters. A parent proposing to uproot a child from everything familiar needs a strong justification.

Each parent's ability to exercise responsibilities. Can each parent actually manage the practical demands of their proposed schedule? Work hours, housing, proximity to school, and support networks all factor in.

The quality of the relationship between the child and each parent, siblings, and other significant people. Grandparents, step-parents, half-siblings — these relationships matter and can influence the arrangement.

The Cooperation Factor

Section 37(2)(f) specifically examines each parent's willingness to support the child's relationship with the other parent. This is the "friendly parent" factor, and it carries real weight.

A parent who actively undermines the other parent — badmouthing them to the child, blocking phone calls, making transitions difficult, or attempting to alienate the child — will have this weighed against them. Courts view cooperative parents more favourably, because a parent who supports the child's relationship with both parents is demonstrating that they're focused on the child's needs rather than their own conflict.

Family Violence Gets Special Treatment

Section 37(3) adds an absolute requirement: no agreement or order is in the child's best interests unless it protects the child's physical, psychological, and emotional safety to the greatest extent possible.

When family violence is alleged, the court must evaluate:

• Whether it occurred and its nature and severity
• How recently it occurred and whether it's likely to recur
• The harm or risk of harm to the child, physically and psychologically
• Whether the child was directly exposed to violence
• The impact on the victimized parent's ability to care for the child

Family violence doesn't automatically bar a parent from parenting time, but it triggers a heightened safety analysis that can result in supervised access, restricted contact, or other protective conditions.

What This Means for Your Parenting Plan

When drafting a parenting plan, frame every provision around these factors. A plan that demonstrates awareness of the child's developmental needs, proposes practical logistics, includes reasonable communication protocols, and acknowledges the other parent's role has a much better chance of acceptance — whether you're negotiating privately or presenting to a judge.

The British Columbia Custody & Parenting Plan Guide includes a best-interests worksheet that walks you through each Section 37 factor with your specific situation in mind.

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