Generally speaking, when a person in British Columbia gives birth to a child, the child is presumed to be in the custody of the biological parent(s) unless other arrangements have been made (such as adoption or surrogacy). However, there are instances in which a biological parent may lose custody of a child, either willingly or unwillingly.

In terms of unwilling loss of custody, there are circumstances in which the Ministry of Children and Family Development (MCFD) may force biological parents who have been deemed unfit caretakers to relinquish their parental rights to the MCFD.

Unwilling Loss of Custody

Unwilling loss of custody of a biological child scenarios typically arise when there are allegations of drug abuse or neglect on behalf of the parents. Willing loss of custody may be carried out when the biological parent(s) acknowledges their inability to provide adequate care for their child. This inability may be due to financial constraints, drug addiction or other impediments to providing sufficient care for a child and willingly cedes their parental rights to another party.

But what happens if someone who willingly relinquishes custody of their child later seeks to regain such custody? Will the courts simply order the child returned to the biological parent, or have those rights been forever extinguished?

In this blog, we explore how a biological parent who willingly gave up custody of their child to a third party may seek to regain custody rights of their biological child.

Mother Willingly ‘Gives’ Newborn Child to Brother, Sister-in-Law

A recent BC Provincial Court decision provides an excellent illustration of what happens when a biological parent who willingly ceded custody of a child seeks to regain custody of that same child at a later date.

The mother in the case had given birth to four biological children, all of whom had been removed from her care by MCFD due to her inability to properly care for the children because of the substance misuse disorder from which the mother suffered. When the mother entered the hospital to give birth to her fifth child, she was concerned that MCFD would immediately apprehend her fifth child from the hospital as soon as he was born because she had used fentanyl throughout her pregnancy with him. As the mother was determined that one of her children would not end up in the care of MCFD, she contacted her brother while she was in labour and asked that he and his wife, who were childless and lived several hours away, take in her child.

The brother and sister-in-law agreed to take custody of the mother’s son, and immediately after the phone call from the mother, they drove several hours to the hospital to take over care of the child. Following their arrival at the hospital and only a few hours after giving birth, the mother self-discharged from the hospital against medical advice. The child, who was born addicted to opioids, remained in the hospital’s neonatal intensive care unit for 10 days, following which he was discharged to the caregivers’ home.

Parties Sign Formal Caregiver Agreement

Before self-discharging from the hospital, the mother and her brother signed an agreement indicating that the mother willingly relinquished care of the child to the brother and his wife as of the date of the child’s birth and acknowledged the caregivers’ right to make day-to-day decisions concerning the child. Importantly, the agreement further dictated that the mother was to retain many parental responsibilities.

After Years of Limited Contact, Mother Seeks to Regain Full Custody of Child

In March of 2023, following years of limited-to-non-existent contact with the child or the caregivers, the mother suddenly reappeared and advised the caregivers that she was now prepared to take over custody of her son. As such, she sought to arrange a move from the child’s home with the caregivers to the mother’s home, several hours away. The caregivers opposed the transition because it was not in the child’s best interests to be removed from the only home he had ever known.

The mother asserted that it would be best for her son to return to her care to live with her and his younger sibling. In the interval after the mother had given birth to and arranged care for her son, she had given birth to a sixth child, who was also born addicted to fentanyl. However, the mother had accepted the assistance of MCFD after the birth of her sixth child to detox from fentanyl. After completing the detox process, the mother left the hospital with her sixth child, of whom she retained custody, and was discharged to a sober residence. The mother asserted that it had never been her intention to relinquish custody of her fifth child to the caregivers permanently but rather had only ever intended that he be temporarily cared for by the caregivers until such time as she could offer a stable and healthy home for him, which she now could.

What Criteria Do Courts Consider in Awarding Custody?

When determining who should have custody of a minor child, the court will consider section 37 of the Family Law Act, which dictates that the primary consideration in any decision for custody of a minor child, is what is in the child’s best interests.

Best Interests of the Child Factors

Section 37 provides the following list of criteria to be considered in assessing the child’s best interests:

“(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a) the child’s health and emotional well-being;

(b) the child’s views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child’s life;

(d) the history of the child’s care;

(e) the child’s need for stability, given the child’s age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person’s responsibilities;

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the person’s ability to care for the child and meet the child’s needs;

(I) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)any civil or criminal proceeding relevant to the child’s safety, security or well-being.”

Is it in the Best Interest of this Child to Return Him to the Custody of His Mother?

The court considered each of the criteria thoroughly, individually, and collectively. It ultimately concluded that it was in the child’s best interests to reside primarily with his mother, who would have a shared parenting arrangement with the brother and sister-in-law. The court acknowledged that the child called the caregivers his aunt and uncle, and the caregivers had never tried to usurp the role of parent from his actual mother, for which they were lauded by the court. The caregivers provided a loving, welcoming, healthy environment for the child for many years, and the court observed them to be actively acting in the child’s best interests.

However, the mother had demonstrated that she was now ready, willing and able to take responsibility as the child’s parent, and the child deserved the opportunity to be parented by his actual biological mother. Given that the child had spent the first nearly three years of his life with the caregivers, the court was also aware that the transition to a new living arrangement would be disruptive to the child. Therefore, it ordered that although the mother would retain primary physical custody of the child, the caregivers would also be afforded significant parenting time.

As a result, the parties were effectively ordered to work together to transition the child to live full-time with his mother with as little acrimony as possible to foster the child’s relationship with his biological mother and also retain his relationships with the caregivers who had loved him as their own for many years.

Contact Meridian Law Group Today to Discuss Your Family Law Needs

If you require advice with respect to a family law matter, such as a divorce, custody or parenting issues, or spousal or child support, then you are in need of excellent legal advice to help navigate the complicated legal process. Fortunately, the lawyers at Meridian Law Group are here to help.

Contact Meridian Law Group today, either online or via telephone at (604)687-2277, and one of our friendly staff will be pleased to schedule a confidential consultation with one of the capable, knowledgeable lawyers in our family law division.