NSW What Happens to Consent Order When Parent Goes to Prison?

[ashleysydney]

My ex-partner and I have one child (5 years old).

Throughout our separation, I pleaded for our daughter not to go to him due to his drug use. I left our local area with our child for safety reasons. His parents arranged for a court order for us to return to the area immediately which I respected and returned.

He is able to dodge drug tests and passes them with flying colours. I could not prove his drug use. After many months of deliberation, a consent order was agreed upon that our daughter would spend one week at his house and one week at mine (with his parents picking up the slack in caring for my daughter and him doing bare minimum). His parents enable him and are in denial about his drug use.

Fast forward to last Friday, approx. 9 months after the consent order was agreed upon. My ex-partner's father comes to my home and advises that my ex-partner was arrested at their home where he was at the time on Tuesday. The following day he had his first appearance (committal) hearing where he was sent to prison and refused bail. I am unsure of the charges at this stage but I know his phone lines were tapped and that multiple people were arrested. Drug ring? Dealing.

My question is, what happens to the consent order now? What steps do I take to get sole custody of my daughter? Is this an open and shut case that goes before a court as he is unable to consent to as he is in prison? Appreciate any help and insight. My lawyer is currently on leave. I think that his parents (like they don't have enough on their plate) will want some sort of visitation...

 

[Atticus]

How has the 1-week shared care been going up to the point of the arrest?

If it's been the grandparents that have been providing the majority of care anyway, and it's been going along okay, then you could just maintain that arrangement with your daughter staying at their house... Do you think they would be happy to continue like that?

The courts are always very reluctant to grant sole custody. But, the court orders being less than 12 mths old, may mean you can apply for a variation to take into account the material change in circumstances since the parenting order was made. The variation could take into account any new arrangements you have made with the grandparents.

 

[ashleysydney]

How has the 1 week shared care been going up to the point of arrest?..

If it's been the grandparents that have been providing the majority of care anyway, and it's been going along okay, then you could just maintain that arrangement with your daughter staying at their house... Do you think they would be happy to continue like that?

The courts are always very reluctant to grant sole custody. But, the court orders being less than 12 mths old, may mean you can apply for a variation to take into account the material change in circumstances since the parenting order was made. The variation could take into account any new arrangements you have made with the grandparents.

My ex-partner relied heavily on people around him to care for my daughter while my daughter is in his care as he was trying to maintain a drug habit. Everyone around him knew about it but decided to keep their head in the sand.

I am not comfortable with my daughter spending the alternating week with his parents, firstly because they are not her parents, secondly as they are trying to now fight this case for my ex-partner and I believe they will not censor conversations in front of my daughter which I believe at this stage, they should be. Thirdly, they are also regular pot smokers themselves and very anti-establishment. They also handed my daughter over to my ex-partners current girlfriend who is living in his home? It’s all just so out of whack.

The consent order was between my ex-partner and me. He is now remanded in jail with no bail under drug charges. No hearing date at this stage and I believe he will be pleading not guilty. His parents were and are always too involved with our lives and wanting to control things. Unless they fight me in court for some sort of visitation, I don’t see what right they have to keep her on the alternative week?

 

[ashleysydney]

I guess back to my main point:

What happens to a consent order when the other parent is in prison?

How easy is it to change or vary the consent order (before court?) so that I would be the sole parent? Does the judge / magistrate step in and decide what’s best given the circumstances?

I tried so long and hard to prove she was not safe in his care due to drug habits and general irresponsiblity but always got knocked back. How can this not be sufficient evidence to prove my point?

 

[Atticus]

Well to answer your specific question, whilst he is incarcerated then it's impossible to implement the orders in it's current form, simple as that.

When your solicitor returns, they are best placed to recommend how best to proceed since they are fully aware of all aspects, however, I repeat, an application to vary an order can be made if a material change in circumstance has taken place since the order was made that makes it impractical to carry out the order. This scenario would definitely fit into that category in my mind...

 

[ashleysydney]

Thank you, Atticus. I appreciate your help and for taking the time to respond to me.

 

[sammy01]

I'd stop all contact. As you said, the consent orders are between you and him. So if he were overseas - it would be his choice to not see the kid. But he is not - he is in jail.

What about when he gets out? Well, a different story - technically you should resume the orders, after all, they don't have a clause saying they expire if one parent goes to jail...

So you could refuse access once the dad gets out, based on the conviction. But - if dad took that to court, my concern is that you have not said the kids are at risk, has been harmed. So by way of example. If a parent has a long history 4-5 drink drive charges, did a 3 month stint in jail for the last one. But never caught with the kids in the car. It would seem probable that the parent probably did drink drive with the kids in the car, but with nothing to substantiate the claims. Sure the parent is an alcoholic, but that doesnt exclude them from being a parent....

 

[ashleysydney]

I'd stop all contact. As you said, the consent orders are between you and him. So if he were overseas - it would be his choice to not see the kid. But he is not - he is in jail.

What about when he gets out? Well, a different story - technically you should resume the orders, after all, they don't have a clause saying they expire if one parent goes to jail...

So you could refuse access once the dad gets out, based on the conviction. But - if dad took that to court, my concern is that you have not said the kids are at risk, has been harmed. So by way of example. If a parent has a long history 4-5 drink drive charges, did a 3 month stint in jail for the last one. But never caught with the kids in the car. It would seem probable that the parent probably did drink drive with the kids in the car, but with nothing to substantiate the claims. Sure the parent is an alcoholic, but that doesnt exclude them from being a parent....

Hi Sammy01, Thank you for your reply. I am very concerned about her safety. Especially if he was to appeal bail and get out. I do not trust him at all and I do not trust that there are people that he owes money/drugs to that would come to his house or his parents house (his parents live on acreage a house or two apart from him) to do something to my daughter. I am scared sick! Also, 'funny' you should mention DUI's. My ex-partner has a long history of DUI charges and has written off at least 4 cars in the last 5 years under the influence. The most recent car he wrote off, he fled the scene of the crime/accident and the police were looking for him. There was also another accident in the last year where he was in an accident with my daughter in the car. He was driving a two seater ute (with no airbags) with my daughter in the front seat, he drove into the back of a parked car. No one told me about this accident, I found out about this accident through my daughter (who thankfully was unharmed). My ex-partners excuse was that he was distracted by his dog who was in the back trailer. I cannot say definitively but it obvious to me that he was either on or coming off drugs. Bizarrely the police did not drug or alcohol test him? Can you believe it!?