SA Mother Going to Jail - Get Full Custody of Children?

[Nan]

Hi,

It is likely that my 35-year-old daughter M will be serving some time in jail for multiple crimes. Her 11-year-old daughter B is currently staying with her dad. (M and D never married and have been apart for many years). Both parents have a history of drug use, but D's getting his life sorted.

However, M is in total denial of her issues and in her mind, she is the victim. Although there has never been any official custody of children order, B had been living (but more recently couch surfing and in emergency housing as she was fired from her last job for fraud) with her mum for the most part.

At this moment, B is with her dad, but for how long? There is a long history of B being exposed to the 'drug lifestyle'. As she knows more about it than anyone should, much less an 11-year-old. How can D get full custody of B? What is the process and does M have to agree to it?

 

[Victoria S]

The father will need to apply to the family court for orders for full custody. The mother does not have to agree, if the court finds that it is in the child's interests to be in full custody of father they will order it. However generally they will only exclude a parent in extreme circumstances. Relationship with both parents is considered important and some visitation with M will most likely still be possible.

 

[MartyK]

If there are no court orders, parenting, guardianship or otherwise, then both parents, including during any parental incarceration, will continue to have parental responsibility. Sole parental responsibility to one parent can only be made by Court Order.

In relation to physical 'custody' (now referred to as 'lives with', 'spends time with'). If the mother is incarcerated then she will not be able to physically care for the child. In which case, unless found a risk/unfit (you state he is a drug user?) the father would legally be able to retain physical care of the child during this period.

If an application is made to the Family Court, then the Judge, as well as other considerations, will consider the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm (the latter being given higher weight if there is any conflict between the two). The best interest of the child is the paramount consideration.

I would not see any reason the father would need to take this to Court if the mother is incarcerated, unless he wants formal arrangements?

 

[Nan]

Thanks so much for your help!

D is taking legal steps to gain custody. M's court case is this Thursday so if she gets locked up, D will get care and control of B by default anyway?

P.S. D is getting his 'use' under control... so he says!

 

[Nan]

Thanks for your help, it's appreciated!

IMO this is an extreme circumstance. But B is loyal beyond belief to M! As I may have mentioned, there have been many many reports to the authorities regarding B's welfare, so there is a substantial paper trail! I'm keeping my fingers crossed that she gets locked up; her court case is this Thursday.

 

[MartyK]

Do you think that the mother will seek to spend time with the child if she is incarcerated? This will be a factor in how the case proceeds.

If the mother has no interest in spending time with the child, or, being a party to the application, then the father can seek for the matter to be heard ex parte (without the mother in this case), and would likely be granted the orders he is seeking for sole parental responsibility and full primary care (no contact with mother).

If the mother is seeking to spend time with the child, then the Court will make decisions based on the considerations I mentioned above.

The mother being in jail, however, would automatically exclude the possibility of the child being able to live with her (the child cannot live in jail too obviously), so the child would live with the father and possibly spend time with the mother in a limited capacity. At least during this period.

While it is important for children to have the benefit of both parents, the reasons for the mothers incarceration as well as any psychological harm to a child in visiting a parent in jail and any other child welfare issue would be looked at.

For the father to have sole parental responsibility (all decision making powers in relation to major long term decisions), the presumption of equal shared parental responsibility will need to be rebutted. Parental incarceration can certainly be a reason for this, but not always.

General day to day decisions fall with the parent who has care of the child, according to the court orders.

Does he have a lawyer?