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NSW Custody of Non-biological Child

Discussion in 'Family Law Forum' started by Lisa Maree, 23 July 2014.

  1. Lisa Maree

    Lisa Maree Member

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    I have been living with my current partner since my son was 2 weeks old, my son is now 2 years old and after many months of arguing we have decided that the relationship is no longer working. My partner is not the biological father of my son, and his biological father is on the birth certificate (biological father has never wanted to meet my son so is not currently involved). My son was born in Victoria and i am wanting to relocate back there as i do not have any support here in NSW being away from my family.
    I am wondering if my partner is able to legally move me back to NSW if i do this and if he can gain any sort visitation/custody of my son without having a biological link to him.
     
  2. AllForHer

    AllForHer Well-Known Member

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    Nothing I say is legal advice, just my own interpretation, and as always, I would advise speaking to a solicitor before making further decisions.

    I have only read a few cases where a step-parent has gained parental rights, but the circumstances are usually extraordinary.

    I suppose your ex might be classified as 'a person concerned with the child's care', but in your case, some components that reduce the likelihood of your ex successfully gaining relocation orders or regular time with the child include the fact that your relationship was under two years in length, the child is still very young, and you would be moving nearer to the child's extended family, with whom your child has a right to maintain a meaningful relationship.

    It would be difficult to argue that it's in your child's best interests to have you relocate to be near to your ex, who is not the biological father, rather than in the child's best interests to be near extended family.

    Have a chat with a solicitor, though.
     
    Lisa Maree likes this.
  3. Lisa Maree

    Lisa Maree Member

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    Thankyou so much for your reply. I was told on the phone to legal aid that because he has formed a relationship with my son that he could have me taken to court if i do leave the state which i find very strange. My main concern is that if in the future my sons biological dad decides he too wants visitation that my son will be divided between 3 homes. I find it strange that they could allow someone without a biological link and who has been in his life for less than 2 years partial custody so i am try gain more information on what my options are.
    I also agree, it in my opinion would be in my sons best interest to be surrounded by his biological family as apposed to being held in a town 8 hours away from any other biological family member.
    Thanks again.
     
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  4. AllForHer

    AllForHer Well-Known Member

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    I think the court would also be reluctant to make a ruling in your ex's favour because that's almost like setting a precedent on you that would not be in the child's best interests.

    Completely hypothetical, of course, but what if you meet someone and stay with him for three years? And then someone else who you stay with for five? Would the court say it's in the child's best interests to also continue having a meaningful relationship with them, as well? Or would the court just decide that only the first has some right to a relationship with the child?

    Logic suggests to me that you're pretty safe to relocate. Your ex would be facing an uphill battle to get you to move away from your family, and the child's family by association, to be nearer to him. In any case, this might be an issue you should just address if he tries to pursue it.
     

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