What is the test for a parent to have custody of their children?

The decision of Spencer J. in the case of Tyabji v. Sandana [1994], 2 R.F.L. (4th) 265 (B.C.S.C.) conveniently sets out the complex nature of custodial issues and the considerations which the court must take into account in determining the best interests of a child. Spencer J. said, starting at page 269: “Custody is a placement of the children with the person who in the court’s judgement, presents that prospect of care and upbringing, which is in the best interests of the children…The court should be influenced more by the shorter term in the knowledge that as circumstances change, custody may be varied… Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children or who was the more responsible for the break up of the family unit. The fitness of each part as a parent is taken into consideration, but only as one of the many elements that contribute to the decision of what is in the children’s best interest. The best interests of the children are established as the paramount consideration by numerous case authorities. Conduct is relevant only if it shows that one parent or the other pursued and will probably continue to pursue his or her self interest to the determent of the children or if it shows that one or the other is less believable on oath it may result in that parent’s evidence, bearing upon custody, receiving less weight.”