The number of people living in Canada who are either separated or divorced is shocking. The emotional turmoil parties go through during the process of splitting up becomes amplified when the welfare of children must be taken into consideration. Unless parents can reach an agreement about child custody and access or visitation, a court must intervene and make the decision for them after a hearing at which all parties have an opportunity to be heard and present evidence. At the very least, a judge would want to schedule a case conference before deciding custody issues, but there could be circumstances under which a court might grant temporary child custody.
What is child custody and access?
Making decisions that affect the lives of your children is relatively easy when parents live together. When a divorce or separation results in one of the parents moving out of the home, an agreement must be reached regarding how those same decision will be made.
As a general rule, the parent granted custody has the legal right and responsibility to make decisions about important matters concerning children of the couple, including:
- Residence location
- Medical care and treatment
Because it is important for children to have both parents involved in raising them, some parents opt for split, shared and joint custody arrangements allowing both parents to share in the decision-making process.
When a child resides with only one parent, maintaining the child’s relationship with the other parent can be a challenge. Access or visitation is granted by agreement of the parties or by court order to the noncustodial parent Depending upon a child’s schedule and where the parent being granted access resides, a schedule of days and times for the noncustodial parent to visit with the child is essential to their relationship.
Obtaining temporary child custody
The best method of resolving conflicts about child custody is with a negotiated agreement reached by the parents usually with the assistance of lawyers representing and advising each of them. If an agreement cannot be reached, one or both parties may file an application with the family court in Ontario asking a judge to decide custody.
Child custody cases in Ontario begin with an application, a Form 8, filed with the family court. The process takes time before the case is scheduled for a conference in court. A motion is a written request to the court asking it to grant some form of temporary relief before the case is ultimately decided by the court. The law requires proof of the existence of a hardship or urgency requiring action be taken by a judge immediately instead of awaiting the conference date normally assigned to a case.
It is essential for parents to keep in mind that the criteria judges use in making custody decisions, including those regarding requests for temporary child custody, is the best interests of the child. Factors a judge may take into consideration to determine what is in a child’s best interests include the following:
- Love, affection and emotional bonds between the child and each parent
- Preferences, if any, of the child
- The amount of time child has lived in a stable environment
- Parenting abilities of each of the parties
- Plans parents present for the child
- Stability of the parent and the home where child will reside
- Relationship between child and parent seeking custody
Courts take into consideration when granting permanent or temporary child custody evidence of a parent’s past violent or abusive behaviour if it was directed toward the other parent, the child or another member of the household.
Get advice and guidance from a lawyer
Petitioning for temporary child custody is too important to attempt without legal advice and representation from a lawyer thoroughly familiar and experienced with family law matters. A lawyer evaluation of the facts and circumstances may provide options for resolving child custody issues.