VIC What are My Chances of Getting Sole Custody of Children?

[Melgar]

Hi, I am new to this forum.

I have a beautiful 4-month-old baby girl. Long story, sorry...

I have been in a relationship with my partner (also a lady) since 2012. Unfortunately, we had a huge fight and for about 6-months we broke up at the end of 2014 into 2015. During this breakup, I hung out with someone else, and in my depressed and confused state wasn't thinking about consequences and got pregnant. Don't get me started on my wrong choices.

The father of my baby has also been a long-term drug user and drinker and during the time I stayed at his house, he began to use ice (I did not know what it was or the nature of it at the time until I told his mum and she completely freaked). I left for many reasons, this including, and reconciled with my long-term partner and got counselling soon after I found out I was pregnant.

During the course of the pregnancy, there was quite a bit of emotional abuse from him, him calling me a coward for not having an abortion, telling me his family hates me, etc. pouring out to me that he might die and all his drug problems. They were all he talked about and trying to talk things over with him calmly became an impossibility. Also the pregnancy hormones and stress of being pregnant overwhelmed me. He also turned up at our house uninvited and very high a couple of times. This disturbed me a lot.

Unfortunately, when I was about 8 months pregnant, he threatened my current partner with a death threat when he lost his temper after she tried to stick up for me. He ended up with a Safe Contact IVO put on him by the police for 12 months based on his statement alone!

I have still decided to do the right thing and have put him on the birth certificate, didn't name the child a name without his input and consent, and have allowed him and his family to see her. But every time we see him he is either smoking or very high or coming down or having a hangover. Also, I suspect that his parents enable him by being complacent. They certainly seem to be ok with him being under the influence around my baby because they keep asking to see her with him. It is wearying.

He keeps promising to go into rehab and stay. He was "kicked out" for bad behaviour, twice since I've known him. He had a "manic episode", his words, and now is "trying to get back in". His sister says he has "no insight whatsoever" about his drug addiction and thinks he isn't hardcore because he takes only such and such mg's of ice each time...

Now I am thinking of applying for sole parental responsibility because if he thinks it is ok to turn up under the influence around my baby now, he will think it is ok when she is 5, or 10, or 15.

I don't want to be a jerk, but I also want to feel that my baby is safe. My current partner and I are stable again and are raising my baby with lots of love. She also wants to adopt my baby when it is legal.

I know it would have been easy to pretend that he was a donor for us and she is the legal parent etc. But I am all for truth and fairness, and I want to do the right thing always so technically, my partner is her step-parent. However, he is not really doing much to assure me that my baby will be safe around him and his family.

Should I do this, and what are the chances I will be granted sole custody of children under family law? If I don't do this, what might happen?

I assure you my baby will know her origins and we plan to be completely honest and open with her about her father.

 

[AllForHer]

Okay, so getting down to the facts, your argument for sole parental responsibility is that he uses drugs.

I think the best way to answer this is by asking a question: which would you say is going to cause the child the least emotional and developmental distress as they grow up:

a) An order for sole parental responsibility that terminates the child's right to know her father and be raised jointly by him?

Or

b) An injunction that restricts him from consuming drugs or alcohol before or during the child's time with him, but still ensures the child can know her father and have him involved in her life as she grows up?

 

[Melgar]

Thank you for your reply.

No, not because of drugs. Because of unpredictable behaviour from the drugs. From his own admission he has overdosed multiple times, slept for two days straight, and once had a blackout and pulled a knife on his mother because of psychosis and drugs. I also failed to mention he has mental health issues and was diagnosed with bipolar some time after we met.

I am aware that many mothers use an order for sole parental responsibility once granted to indeed stop the child from having a relationship with their father. But the child' rights to know their father is always there, it is never "terminated" by the Sole order. It is my understanding that this simply gives the parent with the order the legal ability to make decisions for the child without the other parent's permission, medical, school, residential, etc. Unfortunately, many parents with this order make sad or wrong or spiteful decisions. Some make good and merciful decisions. I hope to be one of the latter. I hope that the court will grant me sole parental responsibility in good faith that I will facilitate my child's relationship with her father in the spirit of the letter and at the same time allow me to know she is in good hands and safe at all times.

So which is going to cause the least emotional distress for my child aka which will be the best for my child? I can only say, a good family, a stable home, and zero exposure to substance abuse (I like to use positive words). If she is able to have this with her father, then yes. If not, then no. All I seek is the authority to be able to say yes or no as the years go by, which I believe the Sole order will allow me to do.

Thoughts?

 

[AllForHer]

I think every single parent at some point would enjoy the right to say yes or no to the other parent as the years go by. Unfortunately, that's not realistically what the Court agrees with, because it's not ultimately what's best for the child.

Sole parental responsibility does not automatically grant you the freedom to choose whether the child spends time with her father. In an enormous majority of cases, a parent who is granted sole parental responsibility must still abide accompanying orders for the child to spend time with the other parent. Consequently, the desire to have sole parental responsibility is not going to enable you to restrict or otherwise manage the child's exposure to the father and his drug usage as you are hoping it will.

In any case, a father who has shown a desire to be involved in the child's life (which the father has, in this case), is likely going to retain their shared parental responsibility, anyway.

 

[Melgar]

I agree. Shared care is always ideal. However, if the Court finds one parent unfit through actual evidence and not through one parent's word, then it is not ideal. I'm sure I have may some insight as to whether one of us is unfit or not. I understand that there will still be rules in place after the granting of such an order such as visitation rights, etc.I would much rather this than uncertainty.

 

[AllForHer]

Sole parental responsibility is an extremely difficult order to have made, and nothing you've really said suggests that the presumption of equal shared parental responsibility shouldn't prevail. Specifically, there's three occasions whereby the Court might consider ordering sole parental responsibility: abuse of the child, engagement in family violence, or it would be against the child's best interests for shared parental responsibility to prevail. None of those appear to be an issue here, so it's probably unlikely that you'll get an order for sole parental responsibility. Plainly speaking, the Court only grants it in extenuating circumstances, after very lengthy court disputes and lots of evidence from third parties to indicate the presumption shouldn't apply.

As I was saying before, however, your concern is the father's behaviour when he's spending time with the child. Since an order for sole parental responsibility doesn't stop the father from spending time with the child, I am unclear as to how an order for sole parental responsibility will have any bearing on the father's behaviour when spending time with the child.

Wouldn't it make more sense to try and get an order that actually does impose limitation on the time spent with arrangements? For example, an injunction on drug and alcohol consumption, random drug tests and a reversion to supervised time in the event a drug test comes back positive for drug use?

 

[Melgar]

Ok.

Does the Intervention Order count as proof for family violence? I have read that emotional abuse counts as FV also, and I have many of his messages of that nature recorded. I surely hope it will not get to the point where my daughter is at risk for the courts to protect us.

And to get that injunction on drug and alcohol consumption etc. how do I give actual proof for his drug addiction?? Perhaps this would be better than sole. I am new to the legal world. I guess my question is, what is proof that the court accepts as proper proof? Video recordings and messages??

 

[AllForHer]

A lot of my older posts cover the basics of Family Law - it's worthwhile having a look through the forum for these explanations to get your head around what the laws are and how they work. For now, though, I'll just focus on your questions, rather than explaining how the whole system in detail.

The Court doesn't need to be satisfied that violence has occurred. It needs to be satisfied that one of the parents poses an unacceptable risk to the child as a result of these issues.

As such, if the child has not been a victim of the violence, then the child is unlikely to be considered at an unacceptable risk of violence in the care of the father. Acts of emotional abuse and threatening behaviour against you and your partner is not the same as committing acts of violence against the child. At best, it might show that you and the father need to have controlled forms of contact, such as changeovers in public places and communication solely in written form, in order to limit the child's exposure to the conflict.

Restricting drug and alcohol consumption, or requiring random drug tests, is often an order made on a precautionary basis. That is, it's quite often the case that if one parent raises it as a possible issue, the Court will make an interim order (interim orders are orders made to support the parties while proceedings are afoot before final orders are determined) to that effect because it's better to be safe than sorry, and if it's not a genuine issue for the parent against whom the order is made, then doing drug tests and abstaining from drug and alcohol use shouldn't be an issue for them anyway.

If nothing ever comes of it, then great. If there are positive drug tests and other issues while proceedings are afoot, however, then that provides supporting evidence that will be of use in final hearing.

As such, it is something you should raise in your affidavit, but all the same, it's something the Court will try and 'fix' while proceedings are under way. It won't actually be a determining factor in final orders unless the issue has not been fixed by the time hearing comes around.

Before you even consider Court, however, you must attempt to resolve your dispute by attending a family dispute resolution conference. This is a mandatory pre-procedure step and you can't file for court orders until you've attempted mediation. Contact Legal Aid or Relationships Australia to start the process.

 

[Melgar]

Ah ok, thanks very much for your time.

 

[Julie Mag]

Hello, this is a difficult one from what I can see here.

I'm in WA so laws can be different from state to state. I have sole parental responsibility bar for the child's name and long term medical decisions. In my case, we wrote our own parenting agreement early on and had them lodged with the court and we agreed that I would have sole parental responsibility. There was no drugs or anything involved in our case either. Perhaps you might consider making an agreement between yourselves and having it lodged with the courts. Perhaps the father may see your reasoning and be grateful that you are prepared to take on the full responsibility for the child.

If you can avoid the courts and make an agreement that you both sign off on, that would probably be the best solution for all of you. There are usually examples of good parenting orders on the court websites anyway. I also am not a lawyer and would suggest you get advice from legal authorities or at least from a mediation service.

Best of luck for a pleasant parenting journey for the best interests of your child.