QUESTION:
If a parent has a custody order but has not exercised the custody leaving the children in the care of non-custodial parents; and does not speak to the children, nor financially help with the children, can a non-custodial parent who has actual care of the children apply for custody?
ANSWER:
Yes of course you can apply for a court order to reflect the facts. The Order requested must be in the best interests of the child so detailed evidence must be provided to prove the facts you want believed.
In BC the 2013 Family Act of British Columbia (“FLA”) clearly states at section 37(3) that: (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. In British Columbia, an adult with actual custodial care could apply for the role now called Guardianship which allows for Parenting Responsibilities (decision-making authority) and Parenting Time.
You can also apply for a child support order stating what each parent must pay to help support each child. The help of an experienced law firm should be used because the Court needs evidence provided in a detailed affidavit with exhibits including searches of police records and child protection registry.
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