ACT Custody of Children 50/50?

[Zeefitz]

Hi all, I'm the stepmum of a wonderful 11 year old girl. My husband and I have been married for 7 years and together for 8.

When I came into his life he was newly divorced with no care of his daughter (then 3). There weren't any legal family court orders in place but his ex had primary care of their daughter and only allowed him day visits. Together over the years, hubby and I were able to slowly convince his ex and turned the day visits into what we have now with her which is Thursday-Sunday (3 nights), every second week and one week for the school holidays and alternate Christmases.

In this time, his ex has re-married and has 2 children and we have 3. For the last 2 years his daughter has been saying she wants 50/50 (custody of children). The mother has always declined it and says it is not in the best interest of the child, despite the fact we only live 10 mins apart and would keep all extra curricular and school commitments. It's a control thing I believe. We've all been patient and thought maybe waiting until the child is 12 where her opinion would be more likely valid would be best.

However, the situation is not improving and communication from the mother is failing and the child is miserable to say the least. So it is not only something that her dad and I want, but something that his daughter wants too. We have tried without any success (due to the mum) to organise for them to sit and discuss 50/50 and over 3 months later she still hasn't agreed to a date. So next step is mediation through a practitioner. Would child inclusive mediation be the best option for us and if it did go to court, what would the chances be of us securing 50/50?

 

[AllForHer]

It's impossible to predict an outcome in court because there are so many variables, including who the judge is. Some strongly support 50/50, while others tend to be adverse to it because if the parties are in court, it's clear they can't reach agreement, making 50/50 unworkable.

However, from what I have read above of your circumstances, there are several reasons I would argue you should at least try for 50/50.

The first is that you only live ten minutes apart, so accommodating the same routine in both households is workable. The second is that there is history of the parties being able to agree on care arrangements.

The third is that while the mother may use that magic phrase ('child's best interests'), just saying it isn't enough. What reasons has she provided to argue that three nights a fortnight is what's best for the child? What evidence does she have to show the current arrangement is better than 50/50?

The reason that 50/50 may appear unattainable is because most cases where 50/50 is granted is decided by consent of the parties, and cases decided by consent are not published on any case law databases. In the same token, 95% of cases initiated with the court are settled by consent. Together, those statistics are pretty good. If your case is fair and dignified (that is, doesn't demonise the mother), then her legal advisor may apply pressure to the mother to reach consent orders (and the cost of court can be a good incentive too).

And finally, the child is at an age where her opinion will likely be given significant weight. If her opinion was 'I want to live with dad and never see mum', then it probably would have less weight, but if she wants to live week about, the court is probably going to give that some serious consideration. To determine the child's opinion, the court would probably order a family consultation, in which a child expert would spend some time with the child (and with all parents) and work out how they feel, then report on that to the court.

So, while I can't say you will definitely win 50/50, it may be worthwhile pursuing it. Get legal advice, though. It's always better to get your situation assess properly because it's simply impossible to cover everything here.

Hope this helps.

 

[AllForHer]

Oh, and yes, I highly recommend a child-inclusive conference. They don't directly include the child, but rather, a professional spends time with the child and then relays the child's feelings to the parents so they can decide with that in mind.

 

[Zeefitz]

Thanks so much AllForHer, I really appreciate the suggestions. Ideally would love to keep it out of court (we always have, that's why it's taken this long) but want to be prepared, should it go down that path. The child's reason for 50/50 is that she loves both parents equally and wants to spend equal time with them. She has said that she wants her dad and I to be more involved in her life and in decision making (which we are not currently) and that she doesn't want to spend more or less time with anyone, just the same amount of time. She's also spoken to her mother about this, who's basically ignored or brushed aside what's been said. How can you not listen to your kid when this is the kind of stuff they are saying?

Also, my husband said that when they separated, his ex asked him to sign some papers that basically said their daughter would be in her primary care. She told him that she would never prevent him from seeing her, but that it would just ensure she received the right centrelink payments to support her during that time. He doesn't recall what papers they were (He was too emotionally distraught to fully comprehend or recall everything) and doesn't have any copies of these papers. Could they have been consent orders? They have never been to court. I know these are treated as administrative and you don't need to go to court, but how would we find out if there are consent orders in place? His ex won't tell us clearly what these papers were, just to say that it was something to say their daughter was in her care. Would CSA or the FAO have a copy of this, considering he pays child support?

 

[Zeefitz]

Also - If we were to move a little further away mid to late next year (40mins to Yass, NSW and we are currently residing in the ACT) would this be detrimental to us? All commitments would stay the same, as let's face it, 40 mins isn't a big deal and our kids would still be going to ACT based schools and all of our work is based in the ACT.

 

[james martin]

Oh, and yes, I highly recommend a child-inclusive conference. They don't directly include the child, but rather, a professional spends time with the child and then relays the child's feelings to the parents so they can decide with that in mind.

I agree with you. In child inclusive conference, they can help you to what your child wants.

 

[AllForHer]

The father not being involved in decision making is a concern. It suggests sole parental responsibility is at play, but consent orders include far more information that just 'that the mother have primary care', so it doesn't sound like they're consent orders, either. To be sure, you should call the family court registry to check there aren't existing consent orders. Even if there are, the court tends to be more lenient with orders enacted when a child was only very young because circumstances can change so much as they grow up.

The move may be an issue dependent on how it impacts the child. A 10-minute drive to school is different to a 40-minute drive to school every day. Again, this is not something I can predict in terms of court outcomes, but it may prove a point of contention for the parties.

 

[Zeefitz]

Very helpful, guys! Thanks again