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NSW Full Custody of Children in Domestic Violence - My Rights?

Discussion in 'Family Law Forum' started by sarah durant, 18 April 2015.

  1. sarah durant

    sarah durant Member

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    I've recently seperated from a violent alcoholic and addict. I've been asked by his father to let my ex have my children aged 3 and 10 months, 3 nights a week. I didnt' want this to go to court for the sake of the children, however it does not sit well with me for him to have the children when he has the above mentioned issues.

    He has been violent with me in front of both children ( domestic violence), and it scares me that they might be in danger in his care. What a my rights? Can I go for full custody of children? I don't mind him seeing the children, with someone else there to supervise.
     
  2. AllForHer

    AllForHer Well-Known Member

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    You can try for sole parental responsibility, but you probably won't get it, and if I'm frank, even trying to get sole parental responsibility runs a high risk of you losing residency all together because it shows you won't support, encourage or see benefit to the kids of having their dad around.

    I see you've named this thread "My custody rights" and I think this needs to be addressed first.

    As a parent, you don't have any legal rights that the court needs to uphold, only the child has legal rights, which encompass the rights to know, spend time and communicate with both parents on a regular basis, regardless of the status of relationship between said child's parents.

    What this means, in basic terms, is that the child's right given above overrules your feelings toward the father, and summarily, 'your custody rights', as you say, don't exist. In fact, 'custody' and 'visitation' are terms the court doesn't use anymore. The terms used are 'parental responsibility' and 'time spent with', which recognises both parents as equally important to a child's life.

    So, let's then address how the court would address this matter.

    If it were to go to court, you would need to show that it's in the best interests of the child to have the father excluded from their lives, contrary to their legal right to know, spend time and communicate with both parents on a regular basis. The court uses section 60CC of the Family Law Act 1975 to decide what's in the best interests of the child. First and foremost, the consideration is the benefit to the child of having a meaningful relationship with the father. Second is the need to protect kids from harm.

    It seems to be a very common belief (and also a very incorrect one) that if a father drinks or has bouts of anger, then the best protection from harm is for the kids have nothing to do with the father, but the court will go to extreme lengths to ensure the kids' legal rights are upheld long before it will order that only one parent have parental responsibility. The court might orders psychological treatment, drug screenings, anger management courses or just a post-separation parenting course to address the father's behaviour in such a way that the kids are able to safely have a meaningful relationship with their dad.

    As a matter of interest, parents who unilaterally suspend time between the kids and the other parent are generally frowned upon by the court. It shows disregard for the kids and their emotional needs, and it shows a risk the kids will not receive encouragement or support from you in spending time with their father. You haven't said the father has been violent toward the kids and even so, such an allegation would require hard evidence and a long pattern of extreme behaviour to be considered an unacceptable risk to the kids such that the legal presumption of shared parental responsibility is rebutted and that you should be awarded sole parental responsibility.

    Looking at in perspective, if you've ever placed the kids into day care, who is to say the day care worker isn't an alcoholic or violent when they're off the clock? Is the father more of a risk to his own kids than a near stranger in charge at day care?

    So, in answer to your legal question, of course you can pursue sole parental responsibility, but you would be facing an uphill battle lasting two years or more at a very high emotional and financial cost, but with a very, very low chance of success.

    Instead, organise a family dispute resolution conference and discuss care arrangements and concerns with the father in front of an unbiased third party. Suggest solutions for the problems that enable the kids to still have a relationship with both parents in a safe environment.

    I hope this helps provide some perspective and I apologise if it seems harsh or blunt. I have found there is often a loud cheer squad of supporters rallying for the cause and encouraging exclusion if an ex from the kids' lives, but doing so has on many occasions led parents to the loss of residency with their kids all together. The court simply doesn't support the case for sole parental responsibility and I think it's better to have a realistic perspective than a false one that might be very costly in the long run.
     
  3. sarah durant

    sarah durant Member

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    Thankyou so much for your reply, I really appreciate it. I didn't really word my question as well as I should. All of this is very fresh and I was fighting back the tears righting my question. I do not want to keep him from the children, I want them to have their father in their lives.I just think 3 days is a bit much given his situation
     
  4. AllForHer

    AllForHer Well-Known Member

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    Three consecutive days is probably too much, yes, given their ages. Perhaps pitch starting at evening dinners at his father's house three nights a week and then gradually increase time to one or two overnights a week.
     
  5. sarah durant

    sarah durant Member

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    Thankyou, I agree that this would be a better outcome for the moment.r: 1366"]Three consecutive days is probably too much, yes, given their ages. Perhaps pitch starting at evening dinners at his father's house three nights a week and then gradually increase time to one or two overnights a week.[/QUOTE]
     

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