WA Ensuring Custody of Children Without Going to Court?

[sean1977]

Hi all,

Recently separated from my partner. We have two kids together. She has no interest to look after the kids at the moment. Personally, I don't have any issue to take care of the kids so we can reach an agreement on this quite easily by signing an parenting plan.

My only concern is as parenting plan is not legally enforceable, she might change her mind a few years later and decide she wants her custody of the kids.

Is there anything I can do now to secure the custody of children without going to family court? Any suggestions?

Cheers,

 

[sammy01]

Yes - no - I mean kind of...

So court orders are made by a judge and enforceable by the courts. Consent orders are orders stamped by the court, so have they have same authority. They outline when the kids are with you and when they are with her, but the judge didn't make the decision. You and the ex made the decision, got the paperwork written up and sent it to the court and it was rubber stamped. So, yes.

But kind of. See in a few years, especially once kids are older than 12, then the court will listen to their opinion. They can't choose, but their call will have considerable weight in court - more so when the kid is older. Courts are unlikely to tell a 17 where they have to live. So she could refuse to return the kids, claim they don't wanna go with you (which might be true but might not) and you would have to apply to court to have them returned... It gets messy.

I'm in a similar situation - kids are 5,8,10 have lived with me for 2 years. They see their mum for about 20% of the year. I have consent orders that outline visit schedules, so I think your sales pitch to the ex is that consent orders stipulate the agreement around when the kids are with you and when with her. Saves arguments - there can always be a 'at other times by agreement' clause, but it makes it easier for the courts to understand the situation.

But forget courts (hopefully). So when my 10-year-old (daughter) says she wants to get to know her mum, I'm gonna pack her bags, drive her up to her mum, give her a kiss, get back in car and cry my way home. But my ex is a nutter - so while she will make a good sales pitch to convince the kids to go live with her, she won't be able to maintain it (I hope) and the kids will wanna come home.

I might be wrong, but even with consent orders that say the kids live with me, if they tell me they wanna go live with the nutter, I'm not gonna stop them. (So all the other paragraphs are based on my legal experience. The last one ain't.

 

[sean1977]

Thanks Sammy. My kids are 1 and 3 ATM.

Is consent order similar to parenting plan in term of content(both parties reach an agreement), the only difference is it is enforceable as consent orders are stamped by court?

Also, is obtaining a consent order a length and complicated process? Both me and my partner prefer to make the whole process quick and not too ugly.

 

[Rod]

If you want 'some' protection the only way is by taking consent orders to the Family Court for stamping. When both parties agree it can be DIY.

Else go with a simple agreement you both sign that has little/no legal weight but might give some peace of mind if the other party is a reasonable person.

Note that even if you go to court and get orders, she can apply sometime later for a change in orders anyway.

 

[sean1977]

Thanks Rod. So basically there is no protection from a changing mind

 

[sammy01]

This site will help you write them
Application for Consent Orders (do it yourself kit) - Family Court of Australia

Sad blight on our society but you can determine arrangements for kids with no assistance, but for assets, you must see a solicitor. So parents can decide what is gonna happen for their kids.

If I had more time, I'd give you a bit of a template, but you'll find one online I'm sure.

Is it a difficult process? Nope and once you write them, sign them and fill out the application form, pay the fee, etc, etc. They will be returned within a few weeks.

Consent orders do provide some protection from a change of mind, especially for kids under 12. So in my case, I still kind of worry she won't return the kids. If that happened, I would be in court within 2 weeks and the kids would be returned pretty quick unless she has grounds to claim fear for their safety. So they do provide a level of security around the kids, especially given the courts don't like kids being involved in constant litigation - so try to stop parents from being difficult.

One more thing - crazy but go with me. Write them yourself. Post them here (with names / locations removed) While you're writing them, have a calendar and some chess people in front of you and move them around like they are people moving from one place to another. Be clinical with details. Meet at XXXX.

So my solicitor wrote my first lot. He stuffed up and one word meant that it could be interpreted that I never see the kids at Chrissy. It said mother in one sentence of one paragraph when is should have said father. For 2 years it was not noticed. I remember challenging it at the time...

Anyways all of a sudden, the ex decided I wasn't seeing the kids anymore at Chrissy because another solicitor had picked up the obvious error. You don't need those sorts of stuff ups.

 

[sean1977]

Appreciate your help.