My ex partner and I separated 11 years ago and we have two children aged 12 and 15 years . We had an amicable arrangement where we ended up doing shared care until he was arrested 2 years ago and jailed. He has a very long sentence of 12 years and I would like to know where I stand legally in regards to my children (who will be 22 and 25 when he is released). Can I apply for Sole Custody and do the children have to visit him? Up until now we have visited once a month but my younger son doesn’t like going (understandably). I don’t know if I can move interstate or back to the UK and feel very unsure what rights I have . Any advice would be very much appreciated.
WA Custody when ex is incarcerated
- Thread starter lozzierain
- Start date
No we didn’t go through any court system - we made the arrangements between ourselves for the children .
Cheers.
So, parents aren't bound to parent their kids in a particular way unless there are Court orders in place, and parents don't need to get Court orders until the parents are in dispute about some major long-term issue affecting the kids, such as care arrangements, name change, major medical intervention, etc.
The key here is that you don't need parenting orders until you and dad can't agree on something. Until then, you are absolutely free to parent as you see fit, including acting as though you have sole parental responsibility (which is the legal phrase used in Australia for 'sole custody'), and you don't need to go through Court to do so. You should, however, keep dad informed of any developments affecting the kids, including any intention you might have to relocate to the UK. If dad objects and you do it anyway, dad can seek a recovery order (though I'd wager the likelihood of it succeeding is pretty narrow).
If you decide to stop forcing your youngest to go see dad, dad can, of course, seek parenting orders, but you don't need to worry about that until it actually happens. Frankly, given his incarceration, I'd say the chance of him actually filing for parenting orders is pretty slim, but if that looks like it might happen, feel free to return here and ask some more questions about your options.
So, parents aren't bound to parent their kids in a particular way unless there are Court orders in place, and parents don't need to get Court orders until the parents are in dispute about some major long-term issue affecting the kids, such as care arrangements, name change, major medical intervention, etc.
The key here is that you don't need parenting orders until you and dad can't agree on something. Until then, you are absolutely free to parent as you see fit, including acting as though you have sole parental responsibility (which is the legal phrase used in Australia for 'sole custody'), and you don't need to go through Court to do so. You should, however, keep dad informed of any developments affecting the kids, including any intention you might have to relocate to the UK. If dad objects and you do it anyway, dad can seek a recovery order (though I'd wager the likelihood of it succeeding is pretty narrow).
If you decide to stop forcing your youngest to go see dad, dad can, of course, seek parenting orders, but you don't need to worry about that until it actually happens. Frankly, given his incarceration, I'd say the chance of him actually filing for parenting orders is pretty slim, but if that looks like it might happen, feel free to return here and ask some more questions about your options.
Thank you for your insight which is appreciated. The children wish to change their surname so it looks like I might have to seek legal advice - I still feel like he’s trying to control us from prison and I really don’t see why I should have to sit around for the next 10 years waiting for him to be released so we can get on with our lives . He is a UK citizen and will no doubt be deported after his sentence so he won’t be able to live here in the future.
The tricky thing here is, courts don't view custody as a parental rite, but a child's rite. So even though the father is in jail and seeks court orders on custody, you view it as the father pursuing his rights, but the court views it as the rights of the child to see the father - even if the child says they don't want to see the father, the court may not necessarily accept that as being in the child's best interests.
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