When a client comes to see us, we are sometimes told “I want sole custody of my child.” The reasons expressed for this wish are usually concerns expressed by the client that their child is exposed to a risk of physical or psychological harm in the care of the other parent and the client wants ‘full custody’ to keep the child safe from harm and to put measures in place to prevent the other parent from taking the child from school.
Whilst ‘custody’ is not a term used or approved by the Court, it is certainly possible for the Family Court to make orders upon application by a resident parent, when those orders are determined to be in the child’s best interests, that the child live with the resident parent, that they have sole parental responsibility for long term decisions concerning the child and that the child spend no time, or ‘time as agreed’ with the other parent. These orders would in effect give the live with parent the ability to ‘control’ any time and involvement the other parent has in that child’s life and in any decisions concerning the child’s long term welfare.
However, there are pros and cons associated with instigating a parenting application in relation to a child where the other parent has chosen not to ‘step up’ and seek to exercise their parental responsibilities in the past.
If you are the live with parent, it may be wise in particular circumstances to ‘wait and see’ what happens and whether the other party instigates court proceedings and presses for time with the child.
Let us help you decide whether filing an application for sole custody is the right or wrong choice for you and your family.
Case Study: BRC1/2018 – Smith & Smith
Tara Smith, Mother of Jayden Smith (5) is the primary carer for Jayden. Jayden’s Father Daniel Smith has not spent time with Jayden since separation with Tara about three (3) years ago. Tara and Daniel separated after a domestic violence incident in 2015 at which time Tara secured a DVO against Daniel. Following separation with Tara, Daniel started drinking heavily and using ice. Daniel was convicted of possession and supply of illicit substances in 2015, and was sentenced to probation for 2 years. Tara’s protection order expired one year ago at which time Daniel started texting Tara, seeking to spend time with Jayden. Tara did not reply to any of Daniel’s text messages and so Daniel initiated mediation with Tara. At the mediation, Daniel refused to agree to drug testing. No agreement was reached at the Mediation for Daniel to spend time with Jayden.
It has now been 8 months since the mediation and Tara has recently been contacted by Daniel asking to spend time with Jayden and Daniel has turned up at Jayden’s school.
Tara is concerned about Daniel picking Jayden up from school and so she books an appointment with Courtney Barton at Barton Family Lawyers to seek legal advice about her rights and what she can do to secure ‘full custody’ of Jayden and to stop him from coming to Jayden’s school in the future.
What should Tara do?
Read on to find out what advice Barton Family Lawyers would give to Tara in her individual circumstances.
Should Tara file an application for sole custody ?
Courtney Barton, Principal of Barton Family Lawyers, would advise Tara to consider all the pros and cons associated with filing a parenting application in her individual circumstances.
The pros:
- A parenting court order is legally binding which will give Tara some recourse to the court, by way of a contravention and recovery application, if in future Daniel shows up at Jayden’s school to take Jayden and refuses to return him to Tara;
- A Court can make orders requiring Daniel to do drug testing and the results of those tests will give Tara some confidence that Daniel is not doing drugs. If Daniel is still doing drugs, Tara can act protectively and seek orders that protect Jayden from any risks Daniel poses to his welfare;
- An Application by Tara may cause Daniel to step up and get his act together, and show Tara that he is no longer using drugs and is not a risk to Jayden’s safety;
- Provided Daniel steps up and proves his sobriety, a parenting court order will be made that enables Jayden to have a meaningful relationship with both of his parents and such orders will give Jayden some certainty, stability and routine in respect of the time he spends with his Mum and Dad.
The Cons:
- Court proceedings are expensive. There are time costs, financial costs and emotional costs. If the matter proceeds to trial, Tara could be waiting two years for a final outcome, from commencement to completion;
- If Daniel is not ‘stepping up’ and forcing the issue to spend time with Jayden, Tara retains the ability to make decisions in respect of Jayden’s living arrangements and issues affecting his welfare unless and until there is a court order in place stating otherwise. If Tara files an application for parenting orders it may cause Daniel to force the issue and press for regular time with Jayden, which he may not otherwise have done, had Tara not filed an Application. Noting that Daniel has instigated mediation with Tara only 8 months ago, it appears clear that Daniel wishes to spend time with Jayden and he is therefore likely to ‘step up’ and prove his sobriety if an application is filed by Tara.
In Tara’s circumstances we would advise her to balance the pros and cons of filing an application and to make a decision which reflects her priorities.
If Tara’s priority is to have the certainty and peace of mind of a legally binding court order in respect of Jayden, and the benefit of a recourse to the court if that order is breached, then Tara may elect to file an application for parenting Orders. In doing so. Tara needs to be prepared for the possibility that Daniel will step up to the plate, prove that he is no longer taking drugs and in the absence of any other serious risks to Jayden, Daniel may have prospects of spending regular meaningful time with Jayden.
If Tara is not able to afford the cost of court and she is not emotionally ready to introduce Daniel back into Jayden’s life, then Tara might elect the uncertainty associated with having no court orders in place, hold off on filing an application and sit and wait for Daniel to do so, if at all.
Notably the mediation certificate received by Tara and Daniel expires in four months (all mediation certificates last twelve months only), which means that if Daniel does not file an application within the next four months, he will need to initiate mediation with Tara again first.
Are you considering filing a parenting application for sole custody?
If you are considering filing a parenting application you should seek legal advice from a family law specialist, as to the pros and cons of doing so.
Contact us today for a reduced rate initial consultation with Courtney Barton to obtain confidential advice on your individual circumstances.
