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WA Custody of Children - What are My Rights?

Discussion in 'Family Law Forum' started by michael dooling, 26 March 2016.

  1. michael dooling

    michael dooling Active Member

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    My wife and I are separated now for 6 months after 25 years of marriage. She refuses to communicate with me. We have 4 children together: 10,15,19,21.

    She has started a relationship and won't let me see or talk to my youngest son. My other 3 sons have chosen to come back home to me because of her actions during the separation. My 10-year-old has no choice.

    There has so far been no court involvement.

    My question is if I do get a visit and I simply don't hand him back over then file for temporary custody of children. Am I breaking any laws or am I within my rights. My wife is not taking her medication and my children and even her family have said there is something wrong as they just don't recognize the person she is becoming.

    Thanks in advance
     
  2. sammy01

    sammy01 Well-Known Member

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    because there are no orders then if the child chooses to stay with you there is no problem. Same as the other kids.

    I'd suggest you call relationships Australia and seek assistance from them. While the ex might not wanna talk to you the fact is there is stuff to get sorted like assets etc. Relationships Australia can hopefull help get you started on sorted it.
     
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  3. michael dooling

    michael dooling Active Member

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    I think I will file for temporary custody on Tuesday morning as im concerned for his welfare. Then I guess I will have to get the police to pick him up.

    It's all I can think of doing to keep my son safe as mum has become quite irrational.
     
  4. babyfirst

    babyfirst Well-Known Member

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    Good luck Michael. Sorry, I can't give any advice but I am interested in the outcome and how long it take to get heard in court when you file on Tuesday.

    Every lawyer I talk to tells a different story.

    Some said I would get an urgent court order if I took away my daughter from drug addict mother.

    Although another very senior council told me recently not to bank on it. Said the court deals with situations every day involving people running off with babies and me sitting in a rental with my 3-year-old in hiding not able to work or take her to day care awaiting parental orders may not be considered urgent at all.
     
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  5. michael dooling

    michael dooling Active Member

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    Thanks, I will keep all informed. I just don't know what else to do. I didn't want it to go this way. In the beginning, my partner said she would never keep me from seeing my kids but since the new man, everything has changed, even the way she is treating her other 3 kids who have all moved back home with me now.

    Thanks, again.
     
  6. Hope this helps

    Hope this helps Well-Known Member

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    Family court place children's rights above all adult happening between themselves. The child has a right to see and spend time with both parents. As there are no court orders regarding your 10-year-old son, he does have a choice and can come and stay or live with you if he wishes, provided you can care for him on a daily basis whilst he is there.

    At age 10, a child must not be left at home without adult supervision. No parent has the right to stop another parent from having contact or access to their child unless a court order states this. As you and your ex-wife do not have any custody orders of your son, your son can ring you, see you, stay with you, visit you as he wishes.

    He can meet up with you away from the mother's residence and suggestions such as picking him up from school, a friends place or having a friend or family member pick him up and return him or other such arrangements can be organised.

    Should it be that your ex wishes to keep you away from her place of residence and have no contact with you then this may be a solution or communication between you both via email may be possible to come to some arrangement.

    I suggest speaking to you son and asking him first what he would like to do regarding contact with you via phone, visits, staying over, living with you, etc., equally so with regards to his mother and to listen to the child's reasons. Your son may want to live with you as he misses you but also living with his siblings as a family unit. Most young children wish their family to be together and do not understand the dynamics at play but simply wish to be a family unit again. They want to freely see all family members and spend time with all. Or he may not like seeing his mother with another man who isn't his father with no understanding.

    Your older children would be more vocal, would articulate their distaste of change in the family dynamics nor accept that their parent has a new person and a new relationship always changes a person.

    You are free to file for custody of your son, however, you will need to attend mediation which will include involving your 10-year-old son, as they will take into account his viewpoint. One thing parents must consider is not using their child as a means to gain access to their ex or use children to gain some kind of control or revenge or communicating messenger between them which is extremely common.

    A lot of family members, friends and especially children including exes, find it difficult to adapt to 'change'. Your ex may very well be behaving differently as she, just as you are, is currently adjusting to change as well. 25 years of marriage plus more of being with each other is a very long time and a huge adjustment for everyone involved including those outside of immediate family.

    6 months is not much time for any dust to settle from this major upheaval in your relationship and should you gain a partner. You, too, will change as different people bring out different sides to us all. But to the children, the Dad will always be the Dad. The Mum would always be the Mum and we all know regardless of children's ages whether 10 or 50 yrs of age, children don't like seeing either parent with a different person and it takes some time getting used to it, if they ever do.

    However, if your ex-wife will not communicate with you, she will have to communicate via email when it comes to your son and will have to take into account that he does have rights to see you and have as much contact with you as he wishes. However, as adults and parents, we also have to try and help all children regardless whether they are a child, adolescent or early 20's, to adjust n deal with a major living and lifestyle upheaval and disruption to a family unit.

    Even though both partners are also handling equally the difficulties of change and beginning a new lifestyle adjustment of they're now, so it would be interesting to know whether your ex is behaving differently because she herself is adjusting and has met someone which everyone is not used to and they are seeing a new side of her that they haven't seen before or she is experiencing freedom and forgetting her duties as a mother to her 10 yr old son?

    Either way, you are not breaking any laws and your son has every right to have access to you as much as he wants. Corresponding via email regarding your son is not only a way of communicating to your ex regarding your son but also can be used as evidence that you have tried to communicate on an adult level to sort out access problems to you son and her replies will show insight in court whether she is putting her son first before her issues if any.

    One thing for sure is the courts will not allow children to be used, pressurised or be pulled and push to into choosing sides, choosing between parents or alienating one parent from the other as both parents are equally important in the development of children.

    Good luck and I hope all goes smoothly for your son in feeling that he is loved and free to see and spend equal time with both parents.
     
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  7. michael dooling

    michael dooling Active Member

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    Thank you so much, it has given me a lot to think about.

    I have made the decision to go to court and try to have it mediated contact arrangements. If she does not reply to my request then I will file for temporary custody. And because of her sudden erratic behaviour, she only met the man 2 weeks ago, I will also be requesting drug screening and will gladly volunteer one myself.

    I'm just worried about my son as she does not contact me or reply to email at all.

    Also, my ex has taken my son out of the city about 800 km away with the new man is she allowed to do that without checking with me.

    Thanks, again.
     
  8. Hope this helps

    Hope this helps Well-Known Member

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    Again, as you do not have any custody orders in place, it is all by agreement between you both regarding your child. You have every right to appose her decision especially as she is not allowing any communication between you and your son.

    What I do know is that if you did have court orders, each parent who moves if they have shared custody, or even worked out specific times when child spends with each parent, they must inform the other parent their address and contact details including medical, education,anything involving major decisions etc at all times.

    What I do know is that if you can prove to the court that 800 km away impacts negatively or inhibits your ability to see your child due to finances, work or other, then your ex will have to either move closer, meet you halfway when, share costs or you pick him up from her place and she has to pick your son up from your place afterwards.

    When going for custody of a child these are the question, suggestions and solutions regarding child custody orders to be considered and made within the orders. You have to consider and be in agreement regarding the child's education, religion, medical, schools , school vacations, birthdays, include being present to see other siblings and even grandparents, medical and other major decisions parents normally have to agree or what is important events like celebrating his birthday, yours and the mothers birthday, Father's Day, Mother's Day, and anything you feel is important to you, your son, etc.

    When a parent has custody even majority of the time the child spends/ lives with one parent, the other parent still must be informed and agree. Courts like it when both parents agree before court themselves, however, if not the judge will call as many recesses for you both with your lawyers to work things out. But this is why mediation was introduced for this purpose and court is used to deal with people who can not or will not agree for the sake of their child.

    So the judge will decide for you. This is why I suggested emailing your ex to converse with her and come to some arrangement because emails are hard copies of what has been said and transpired in written form

    Where the judge has seen parents trying to think of the good of the child and not themselves.
     
  9. Hope this helps

    Hope this helps Well-Known Member

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    Basically it is expected that parents come to an agreement whether verbally or written ( hence why email is suggested) for the best interest of the child not just immediate but in the future as well. So you can email or type a letter (keep copy if it's a letter or better still fax or have it sent via registered mail so you know she has signed for it and received it) that you want to work out and agree to having your son live with you and work out together a fair and equal way so your son can see you both equally and set out all possibilities. If she does not respond.

    Then you have to write to her that you wish to have custody of your son and as she will not get a response to your acts of communication or you both are unable to agree on anything or a particular issue, you then implement that you wish to see a 'Family Dispute Practioner' for mediation. And if either of you can't agree, a Family Dispute Practitioner then either one of you will suggest to the other 3 Family Dispute Practitioners and the other one has to pick one of them and give the chosen one within 7 days.

    If not, the one who has sent the 3 names, addresses n phone numbers of the Family Dispute practitioners chooses which practitioner to use. Both parents pay for seeing these practitioners time.
    If both of you can not agree on something after attending the disputed practitioner then you or her can file an application to the Family court.

    So, this is the process now and I can tell you, these days judges get pissed off dealing with parents who are incapable of using common sense for the well-being of the child. And before you can file an application to the courts, you have to receive a certificate from the Dispute Practitioner who will make you keep coming back until they give up and think you both really can't come to any arrangement or agree on one particular issue that means a great deal to one of you and then they will sign a letter saying you both can not resolve this . Then court is used.
     
  10. sammy01

    sammy01 Well-Known Member

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    The cops will not pick him up. The court will take a year or more. If there are no orders and you have concerns for his wellbeing, just pick him up. Otherwise, the court will not consider your 'concerns' as all that serious, because if they were you would have acted quicker.

    Go pick up the kid
     
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