NSW No Court Orders - Can I Have Primary Care of Children?

[Steve1905]

I have had my 2 children living with me for 3 years as the mother moved away and didn't want to make them leave their friends. They are aged 13 and 15. My family is a blended family of 7. This includes my 2 boys, my partner's 2 children and one we had together.

The boys' mother has now returned and is demanding the boys back as if there is no choice in the matter. There is no custody agreement as at the time we both agreed it was best for them to stay with me (custody of children). Child support have me as the custodial parent.

I love my boys and would never deny them spending time with their mother but both families agree I should be the custodial parent. I understand in the past the mother would normally be granted custody but I know things have changed and would really appreciate an understanding of my rights.

 

[AllForHer]

Mothers are not normally granted custody anymore. Major reform to the Family Law Act 1975 now sees a presumption of shared parental responsibility and time awarded that meets the best interests of the child. In a lot of cases now, fathers are 'winning custody' because they have been deemed, on their unique circumstances, to be better able to provide for the child's best interests.

Just because I'm so used to it now, 'custody' isn't a term used by the courts anymore, it's 'parental responsibility' and 'time spent with'. They changed the terminology to reflect a more mutually important system that recognises the equally important role dads play in a child's upbringing.

Anyway, if this were to go to court, orders would probabaly be based on whatever your kids say because at 13 and 15, they would likely be deemed old enough and mature enough to decide for themselves who they want to live with. If mum isn't that interested in what the kids have to say, you might consider a child-inclusive mediation conference so they can be heard on what they want, and mum can hear what they want, as well.

However, all that set aside, the court will make whatever orders it deems to be in the kids' best interests. If they've lived with you for 3 years in a stable, healthy and happy environment, with a family that supports that emotional, physical and intellectual needs, and have developed a strong relationship with the brothers/sisters/family they live with, the court will be very, very reluctant to decide it's in their best interests to be uprooted from that lifestyle and placed into the care of their mother.

If you want to settle it amicably, though, I'd definitely consider child-inclusive mediation. The last thing kids want is their parents tied up in strenuous court proceedings.

Hope this helps!