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Ex's Rights Over Children - Should I Get Family Court Orders?

Discussion in 'Family Law Forum' started by Tegan Cole, 8 October 2014.

  1. Tegan Cole

    Tegan Cole Well-Known Member

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    Has my ex got any rights over my two older children being their stepfather ( custody of children)? We have two children together and the older two are not biologically his. The children do not nor have they ever had contact with their biological father. Can he get visitation or custodial rights?
     
  2. AllForHer

    AllForHer Well-Known Member

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    Anybody who is concerned with the care, welfare and development of a child is entitled to, for example, pursue orders for the children to communicate and spend time with them.

    Likewise your kids have a right to spend time and communicate with any party relevant to their care, welfare and development.

    Likewise again, you, as a parent, have a duty to protect that right on their behalf.

    Given that your eldest kids have only ever known their step-father to be the primary male role model, and that they are the half-siblings of his own kids, you would be fighting an uphill battle to have him ousted from their lives.

    For the record, 'visitation' and 'custodial rights' are not terms used in the Australian court system.

    Hope this helps.
     
  3. Tegan Cole

    Tegan Cole Well-Known Member

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    Sorry I don't know the terms for any of this. I have allowed him to speak to the children but he is very violent and last time I saw him he tried to run me and the kids off the road then bashed my elderly father in the court house. So him seeing them without proper supervision scares me.
    Thankyou for helping.
     
  4. AllForHer

    AllForHer Well-Known Member

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    If you have genuine fears for the kids' safety under his care, you can act to protect yourself and them with a domestic violence order. While an order alone is unlikely to oust your ex from their lives completely, you may be able to have care arrangements ordered that happen only under supervision at a contact centre or similar.
     
  5. Tegan Cole

    Tegan Cole Well-Known Member

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    I do have a protection order and live in another state now too, however he still speaks to the children by phone as stipulated in the order and I don't want to initiate any Family court order. Should I be initiating it or should I just wait and see if he does? Thanks again
     
  6. AllForHer

    AllForHer Well-Known Member

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    If he is not currently pushing to see the kids and is just speaking to them on the phone, you would be better to wait and see if he makes a move. That's when you should seek legal advice.

    Recording phone calls, though - steer clear. On many occasions, doing so has backfired on the recording parent because the court sees it as 'trying to pin the other parent' rather than 'acting in the kids' best interests'. Feel free to document these things though in a diary so you have something to refer to if it ever ends up in proceedings but at the end of the day, your former partner telling your kids you are a bad mother doesn't reflect on you. It reflects on him.
     
  7. Tegan Cole

    Tegan Cole Well-Known Member

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    My ex has not seen our children for over ten months now and my daughter (9) wants to see him. They talk on the phone three times a week and he keeps telling her that I have to get paperwork sorted out so he can see her. Due to violent circumstances with him we left the state and I dont particularly want him around the kids until he has sought professional help for his anger. Will it look bad on me in a Family court if I do not apply first for visitation rights for him to see the children. Should I just wait for him to try get visitation orders of some sort? And what if he does not make any effort to get orders in place to see them, should I?
     
  8. AllForHer

    AllForHer Well-Known Member

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    Ah, so he does want to see the kids?

    If he's planning to make a move, he's probably gathering evidence for the exact question you just asked about whether or not it would look bad on you.

    In short, yes, it will look bad on you if you deliberately stop the children spending time with their father, especially since the order is there to protect them anyway. Acting like you don't trust the court order against domestic violence and deciding to take matters into your own hands by simply stopping your kids from seeing their dad is vigilante justice, isn't it?

    Courts have made orders on the basis that one parent has demonstrated an unwillingness to facilitate the relationship between the child and the other parent. Whether you like it or not, the court is probably going to order that the kids spend time with their dad, and no matter how uncomfortable that makes you, it's not about you, it's about your kids. Your daughter is asking to see him - she's clearly not afraid of him, and she clearly has an attachment to him, so is stopping her from seeing him about her best interests? Or is it about yours? Realistically, is his violence toward you? Or is it toward his kids?

    Sorry to be blunt, but the courts are unforgiving on parents who act as though they might consider themselves to be more important to a child than the other parent, and you will find their reprimand far more damaging than mine.

    I would suggest agreeing to the daughter spending time with her dad, and I would suggest enrolling in a post-separation parenting course. Your situation is very high conflict, and you are BOTH responsible for controlling that.
     
  9. Tegan Cole

    Tegan Cole Well-Known Member

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    AllForHer, thankyou and I am just very confused as I thought I was doing what was in the kids best interests as he has committed domestic violence in front of the children and has tried to run me off the road with the children in the car. We also live in another state now so I dont know how to facilitate the visitation and I'm scared that if I allow him to see the children especially my daughter, that he will not return them as he is, as the court stipulated last week, out for vengeance towards me. I really thought that I was doing what was in the childrens best interests, now I am worried I have done the wrong thing and the last thing I want is for my children to be effected by all of this. I just want whats best for them, I really do, I never wanted it to get to this point, but I am genuinely scared. So should I make the first move to the Family Court with all this in mind? Thank you again, you are the only one that has explained it so I can understand.
     
  10. AllForHer

    AllForHer Well-Known Member

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    Children's matters are very delicate - parents can sometimes be seen as supportive by facilitating time with a father they don't trust; sometimes they can be seen as overbearing or controlling. It's impossible to predict.

    Realistically, you're dealing not just with distance, you're also dealing with family violence, which in many cases leads a judge to order supervised time with the violent parent, rather than unsupervised time. There is no real way to monitor whether that time would be supervised, though, given the fact that you live in different states.

    So with all that considered, my personal, very non-legal-advice opinion is that you should tell the father you are willing to facilitate the kids spending some time with him, but not before both of you attend mediation and get a parenting plan on paper. At the moment, while there's no agreements in place, either parent can do what they want, including keeping the children, but with an agreement on paper, you will have something to show to a court if you need to get an urgent recovery order.

    So in summary, tell the father you're willing to facilitate time, once you reach an agreement about parenting arrangements through mediation. Contact Relationships Australia and organise a family dispute resolution conference - it will be up to them to contact the father. If he doesn't respond, you get the certificate you need to show you've made a reasonable effort to reach an agreement, to no avail. If things continue, then you might consider pursuing orders through court.
     

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