Subsection 24(2)(h) of the Children’s Law Reform Act that outlines a number of factors determining the best interest of the child, requires the court to consider the child’s relationship by blood or through the adoption order between the child and each person who is a party to the application. It should be noted that the section does not create a presumption in favour of biological parents.
Often the applicants for custody in a court proceeding are biological parents making the consideration for subparagraph 24(2)(h) neutral. However, where the parties in a custody battle are a biological parent vs. a non-biological parent the consideration of this factor becomes relevant. The most common situations where a custody battle takes place between a biological parent and let say other relatives i.e. grandparents is when a biological custodial parent dies. In this situation, the battle is usually between the surviving parent, usually an access or absent parent vs the child’s relatives. If the child’s relatives were more involved in supporting the deceased parent in taking care of the child than the biological surviving parent, the relatives may well end up getting custody of the child. Other times even if the relatives were more involved but the surviving parent had access to the child and perhaps had prior custody of the child’s siblings, the surviving parent will stand a good chance of getting custody.
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