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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 06-02-2006, 02:58 PM
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Default need info on getting temporary custody order

Can anyone help me with some accurate info on what I would need to get a temporary custody order. I currently have living with me my granddaughter. She was left with me voluntarily by her parents in March. Children's Aid Society is involved but there is no court order for her to be with me through them. They have however told me not to release the baby to her parents. The parents have not shown alot of interest in her and the mother is heavy into the drugs and I believe the father is too (although CAS seems to think differently). I would like to know what I would need and if I would even be able to get a temporary custody order on my own. Any help would be appreciated greatly.
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Old 06-02-2006, 03:20 PM
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Depending on what province you are in will dictate how you go about getting a parenting or custody order. If it's Children's Aid that is involved, that sounds like Ontario - is there any reason why they haven't sought to place her with you? (Then again Children's Aid seems to work in mysterious ways).

If you are confident enough to go self represented, there should be a package of forms available for you to fill out when you make your court application. I don't know the link to the package in Ontario - can someone else offer some insight?
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Old 06-02-2006, 06:17 PM
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Sloane,

Right now, it appears Children's Aid have custody of the child, and they have placed the child in your care.

This statute would apply to your circumstance

Child and Family Services Act R.S.O 1990 CHAPTER C.11

http://www.e-laws.gov.on.ca:81/ISYSq...AA49.tmp/6/doc

Is their a written agreement between the CAS and the parents?

Temporary Care Agreements

Temporary care agreement

29. (1) A person who is temporarily unable to care adequately for a child in his or her custody, and the society having jurisdiction where the person resides, may make a written agreement for the society’s care and custody of the child. R.S.O. 1990, c. C.11, s. 29 (1).


You would have to bring forth an application with the court's under the

Children's Law reform Act R.S.O. 1990 c. C.12

http://www.e-laws.gov.on.ca:81/ISYSq...AA49.tmp/6/doc

Section 21

Application for custody or access

21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.

Have you consulted with the CAS of your desire to obtain custody of the child? You would have to name them as a party to any court proceedings. It's best to get them to support your wishes.

The Application form that you would have to fill out is Form 8 - Application (general) which can be found here. In child protection matters the CAS uses form 8B exclusively.

http://www.ontariocourtforms.on.ca/e...mily/index.jsp


lv

Last edited by logicalvelocity; 06-02-2006 at 06:21 PM.
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Old 06-03-2006, 12:58 AM
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There is no written agreement between the parents and CAS. CAS did not get involved until I called them after the baby had been voluntarily left with me by the parents. CAS had been involved previously but not to take the baby. They were there just to keep an eye on things. The mother is completely out of the picture now and it's just the father that is looking to get his daughter back. I believe tho that he is into abusing prescription drugs and he is not fit to be raising a child on his own. Any info on whether or not I would be able to actually get a temporary custody order would be helpful. I feel like I might be wasting my time. CAS has no problem giving the baby back to the father as long as their agreement with him is satified but I think he is just telling them what they want to hear. CAS has told me that if I want to pursue custody then I am on my own.
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Old 06-03-2006, 08:29 AM
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sloane,

What you have somewhat is a defacto custodial arrangement. You are looking and caring after the child with the CAS endorsement. This defacto arrangement looks good on you for a future application for custody of the child. For these reasons,

a) it appears the parents have abandoned the child and have left the child in your care.

b) CAS is involved and is aware of the situation and basically supporting the child in your care.

The longer this arrangement goes on, the less likely the courts would interrupt a status quo arrangement if you are able and willing to look after the child.

For the legal side of it, you could bring forth an application under the Children's Law Reform Act.

Section 21

Application for custody or access

21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.


The Application form that you would have to fill out is Form 8 - Application (general) which can be found here.

http://www.ontariocourtforms.on.ca/e...mily/index.jsp

In your application, you would have to name BOTH parent's as Respondent's in the matter and serve both of them. Reason being is that at law at the present time the two parents are equally entitled to share the responsibilities and the benefits of custody. In other words, at law they in fact each have coextensive custody of the child at the present time. It appears somewhat though that they have abandoned this responsibility to look after the child.

Your claim is not frivolous or vexatious

lv
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Old 06-11-2006, 04:37 PM
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I think I need to clarify a bit in order to get the proper info that I need. As far as I know, there is no written arrangement between the parents and CAS. The only thing in writing that I am aware of is a plan/agreement of what the parents need to do in order to get their daughter back. Recently CAS has deemed the mother (my step-daughter) unfit due to the fact that she has dropped off the radar and nobody (not even her boyfriend/baby's father) knows where she is. She has also failed to go to her rehab appointments and has tested positive for quite a bit of drugs on the few screens that she did. She is heavily into drugs and from what I understood from speaking with CAS, she will never get her daughter back. My concern now goes to the father. I believe that he is also into prescription drugs which is harder to prove when it comes to abuse. CAS has told me that it would be an invasion of his privacy to test the levels of oxy's in his system to determine if he is abusing them. I find CAS's repsonses to my concerns infuriating. It seems as though they care more about the father's rights than the life of an innocent child. What I would like to know is what will work in my favor and what will work against me if I go ahead with getting a lawyer and going to court for a temporary custody order? How much rights does the father have when it comes to drug concerns? I should also mention that in the 3 months that I have had his daughter, he has been here to see her only 4 times and the last time he was supposed to come he neglected to call me to say he would not be here and never showed up as expected. Does he have a good chance of winning in court if there in no court order through CAS for me to have her right now? Sorry for the extra long story. Any thoughts or info would be greatly appreciated.
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Old 06-12-2006, 12:29 AM
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sloane,

I think you have sufficient grounds right now.

Incidents of custody and access are determined by Part III of the Children’s Law Reform Act R.S.O. 1990, CHAPTER C.12

http://www.e-laws.gov.on.ca/DBLaws/S...sh/90c12_e.htm

In this statute Section 20 says this

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

So in other words, at law, until a "separation agreement" or an order from the court, the mother and father have coextensive custody of the child.

“separation agreement” means an agreement that is a valid separation agreement under Part IV of the Family Law Act. See 18(1) of the Act

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

It appears that neither the mother nor the father is acting and taking on the responsibility of looking after the child.

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).

Same, neither parent is acting and accepting responsibilities for the child care.


Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

Does not apply, as the child is not living with either of them. However I believe incident's of the child's access would survive, unless there was a cogent reason not to occur.

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

Section 21 applies directly to you

Application for custody or access

21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.

This is your legal stance to bring forth an application Section 21 is clear " OR ANY OTHER PERSON"

Section 24 the merits of custody and access

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).



with all that said, Court's will definitely consider the status quo.
and other things such as the stability of the family unit. Where does the father live, is he employed. Is he able to look after the child. etc.

I believe if he was able to look after the child now, the CAS would leave the child in his care. They must have their doubts.

I would bring forth an application for custody ASAP.

lv
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Old 06-17-2006, 02:06 AM
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Unhappy new concerns with my custody issue

I very much appreciate your information. I have new concerns now that I also need help with if possible. The mother of the child that I have staying with me started paperwork about a month and a half ago to transfer full custody to the father in order to prevent myself and my husband from going to court to get custody of her child. She assumed that if custody was in the father's name then at least the child would be with his family and not hers. I have gotten a lawyer (thru legal aid unfortunately) but he did not tell me until it was too late that I could have called the family court myself to find out if custody papers were actually filed or if it was just a lie my stepdaughter told us. I found out from the court that the custody hearing was this morning and as far as I know it would be granted because the mother was the one who wanted the custody transferred. I was 2 hours too late. My lawyer has told me that if I had known about the hearing then I could have gone to have myself listed as a third party and chances are the hearing would have been adjourned until a later date. What I need to know (because I think I picked the wrong lawyer) is how bad will it hurt me going to court now to try to get a temporary custody order now that the father is listed as having sole custody? I have now had the child in my care for over 3 months, the father has provided no financial support to me and has only been to see his daughter 5 times. His side of the family has never called to ask how she is and they have only seen her once (when the father took her for the day to visit with them). Can the father just show up on my doorstep now and tell me that he is taking his child back for good or would CAS's involvement still allow me to keep her here (there has never been a court order thru CAS)? The father had recently asked me if we could keep his daughter with us for another 2 months so that he could go back to being a long haul truck driver so he could save up some money but he also neglected to tell me the last time I spoke to him that the custody hearing was coming up. He most likely kept it from me deliberately and I'm just waiting for a knock on my door. Please help with any info you can give me.
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Old 06-17-2006, 02:09 AM
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Unhappy

I very much appreciate your information. I have new concerns now that I also need help with if possible. The mother of the child that I have staying with me started paperwork about a month and a half ago to transfer full custody to the father in order to prevent myself and my husband from going to court to get custody of her child. She assumed that if custody was in the father's name then at least the child would be with his family and not hers. I have gotten a lawyer (thru legal aid unfortunately) but he did not tell me until it was too late that I could have called the family court myself to find out if custody papers were actually filed or if it was just a lie my stepdaughter told us. I found out from the court that the custody hearing was this morning and as far as I know it would be granted because the mother was the one who wanted the custody transferred. I was 2 hours too late. My lawyer has told me that if I had known about the hearing then I could have gone to have myself listed as a third party and chances are the hearing would have been adjourned until a later date. What I need to know (because I think I picked the wrong lawyer) is how bad will it hurt me going to court now to try to get a temporary custody order now that the father is listed as having sole custody? I have now had the child in my care for over 3 months, the father has provided no financial support to me and has only been to see his daughter 5 times. His side of the family has never called to ask how she is and they have only seen her once (when the father took her for the day to visit with them). Can the father just show up on my doorstep now and tell me that he is taking his child back for good or would CAS's involvement still allow me to keep her here (there has never been a court order thru CAS)? The father had recently asked me if we could keep his daughter with us for another 2 months so that he could go back to being a long haul truck driver so he could save up some money but he also neglected to tell me the last time I spoke to him that the custody hearing was coming up. He most likely kept it from me deliberately and I'm just waiting for a knock on my door. Please help with any info you can give me.
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Old 06-18-2006, 08:56 AM
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Sloane,


The first thing you have to do is go to the court house and get a copy of the continuing record of the case involving the father and mother. These are public records and you will be entitled to a copy. You may have to pay a photo-copy fee.

I suspect any order made in regards to custody of the child was an interim order.

You can start your own application for custody of the child under section 21 of the children's law reform act. You can name the mother and father as co respondent. I suspect at that point the court's would combine the files or have you listed as a party to the current case.

lv
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