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Emergency Custody Orders vs. Regular Custody Orders: Key Differences

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What is a Custody Order?

Custody orders are orders given by the court that outline how divorced or separated parents must split the care of their shared children. They may detail where the child will live and which parent can make decisions regarding their health, schooling, religious upbringing, and other crucial choices. Current legal terminology refers to these orders as parenting time and decision-making responsibility orders, but many still use the term “custody order.” An experienced Ontario family law lawyer can explain how emergency and regular custody orders are obtained and when each type may be appropriate.

What Are the Differences Between Regular and Emergency Custody Orders?

Understanding how the custody process works is vital to reaching the best possible outcome in your case. Applicants seek emergency custody orders much less frequently than regular custody orders because the former are restricted to very specific situations. However, utilizing the option to request emergency custody can prove critical if you believe your child is in danger of immediate harm. The following are the key distinctions between regular and emergency custody orders.

How Long the Order Takes to Obtain

Regular custody orders are part of the divorce process and may take many months to finalize. In contrast, emergency custody orders are granted rapidly because they are used to ensure a child’s safety until the court can gather more information on the case’s circumstances. In an emergency, an ex parte motion for custody may be filed, which means the other party is not notified of the motion. After reviewing the motion, the court may grant temporary emergency custody immediately without a hearing.

When the Order is Used

All divorces involving minor children will require the parties to come to an agreement on a regular, long-term parenting plan. If the parents have irreconcilable disagreements over parenting time and decision-making responsibilities, the family court will make a custody order to resolve these issues. To ensure a stable environment for the child, the court will usually set up a temporary custody agreement early in the divorce process to bridge the gap until a permanent solution can be finalized.

Emergency custody orders are only used when another type of order would not be appropriate, and any delay could result in harm to the child. Courts are extremely hesitant to allow ex parte motions for emergency custody unless the requesting party can provide compelling evidence that an immediate risk to the child’s well-being exists.

According to Ontario law, circumstances that may justify an emergency custody order include:

  • Immediate risk of abuse or neglect that could harm the child’s health or well-being.
  • A high likelihood that delaying the motion or providing a notice would result in the child’s removal from Ontario by the other parent or another individual.
  • Knowledge that serving a notice of motion could place the child or the parent making the motion in grave danger.
  • An inability to locate the other parent to serve them with documents after they have abandoned their child.

The Length of Time the Order Lasts

Regular custody orders may be temporary or permanent, depending on their purpose. As noted above, temporary custody orders are standard early in the divorce process and allow for continuity in the child’s life until permanent arrangements can be made. At the completion of the divorce process, the parties must file a permanent parenting plan with the court for approval. If the parties cannot agree, the court will create a parenting plan based on the child’s best interests.

Due to their nature, emergency custody orders are nearly always temporary. After approving the ex parte motion for emergency custody, the court will usually schedule a follow-up hearing in a couple of weeks. During this hearing, the other parent can respond and present evidence, and the court will decide whether to extend the current custody order or modify it. This hearing can be critical to your child’s current and future well-being, so it is vital to seek knowledgeable legal representation to ensure you are presenting robust and relevant evidence to the court.

Who is Granted Custody

In Ontario custody cases, the court prefers to have both parents play an active role in their child’s life unless there is compelling evidence that it would not be in the child’s best interests. While every case is unique, it is common for regular custody orders to involve some variety of joint parenting time and decision-making arrangements. In contrast, the purpose of seeking an emergency custody order is to get temporary sole physical custody to prevent harm to the child.

What is the Process for Obtaining an Emergency Custody Order in Ontario?

The decision to seek emergency parenting arrangements should be made carefully, and the child’s best interests should always be the primary consideration. The court may take a dim view of your actions if you attempt to file a motion for emergency custody when the situation is not truly urgent. However, if you believe you are in a position where the delay involved in getting a regular custody order could be harmful to your child, you should take the following steps:

  • Assess the need: Determine if an emergency temporary custody order is necessary. Judges are generally reluctant to make custody orders on a rushed basis unless they see clear evidence the order is essential to protect the child’s health and welfare. Your lawyer can evaluate your circumstances and help you determine the best legal options.
  • File a motion: File a motion with the court requesting the emergency custody order. The motion must include evidence that demonstrates why an immediate order is required.
  • Take steps to protect your family: If you are concerned for the well-being of yourself or your child, do not hesitate to reach out to authorities or local support groups, such as women’s shelters, for assistance. You may need to take further legal action to ensure your safety, such as filing for a restraining order or temporarily relocating to a safe location.
  • Attend your hearing: An emergency custody order is usually temporary. You will need to prepare for your upcoming court hearing by gathering evidence and testimony that outlines why this custody arrangement should be extended for the protection of your child.

How Can Our Law Firm Assist You?

As a parent, divorce can be incredibly emotional. The situation can even turn frightening if you have concerns about your child’s safety. Whether you are negotiating a long-term permanent parenting plan or seeking an immediate emergency custody order, it is vital to understand the custody process and have a strategy for your next steps. Consulting with an experienced child custody lawyer is recommended to help you navigate the complexities of the court system effectively. Contact Anthony Family Law today at 647-933-2397 to schedule a free case evaluation with a compassionate, skilled Ontario custody lawyer.

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