Court & Custody Questions

Hi,

I know there are some of you here who understand the family court and child custody. My question isn't really for myself but for my x (complex situation I know).

Ok here is the situation:
Ex's wife left him when there son was 16mths old for someone she had been having an affair with. During this time X has had joint custody of the child (now 8.5) and usually 1 week on 1 week off.
The child has diagnosed ADHD, Asperger Syndrome and Epilepsy.
The mother has no time for him, buys him no clothing or shoes (my x does all of that) nor pay the school fees.
Over the past years her new partner had been doing the large majority of the child care/raising of x's son. They have now seperated as she has had an affair with one of his friends.
OK... currently my xdf has his son every wednesday night, most tuesday nights and every second Friday to Thursday... so on average 8 nights a fortnight.
His son has now stated repeatedly that he is 'moving' out of his mum's home to live with his dad and he doesn't want to live with her anymore.
His mother has a daily marijuana habit, drinks every night and is still fobbing her son off to her x (not xdf but the man she left him for) or my xdp more than she has him herself.
When at her house he rarely leaves his room, he stays in there and watches dvds or plays the playstation alone.
She is emotionally abusive to him.
Her new x (plus other people) would be prepared to suuport J (my x) in a custody battle. The problem in all honesty is finance.

OK so here are my questions:

1. How much would it cost to go for sole custody? (they currently have no custody court orders, just a mutual agreement)

2. Can the child say what he wants in regards to his living arrangements or is he too young?

3. What would the likely hood of winning custody be? (would it be worth putting the child through a court case)

Anyone who can advise me in any way would be greatly appreciated. As stated I am nolonger in a relationship with my XDF but our seperation is very ammicable and we are actually better friends now than before the split. There is some slight chance of a reconciliation although to be honest his son is a contributing factor to our split. That said I know he doesn't like living with his mother and loves his father so I would support that for his sake.

ok thanks any advice greatly appreciated, oh i think i have said that.

Another option you have, in the short term, is to make a notification to the DOCS. As a health professional, I would be obliged by law to make a notification given the use of drugs and subsequent neglect in the household. It is possible that if DOCS were to intervene, your ex-DF would be granted a temporary full custody until the mother either got her act together, or alternatively, decided to cede custody to the father.

Any member of the public can make a notification to DOCS. From your story, it sounds to me as if the child's needs are not being met in the mother's household, and for that reason alone, I would urge you, or your ex-DF, to notify DOCS so that they can intervene and at the very least provide the mother with support in controlling her substance abuse and becoming a better provider for her son.

Just as a rough amount, my partner spent about $30k on his divorce - most of this was child custody related and by then end of it all, the youngest child was over 12 and decided she didn't want to come in and see her father (basically because they mother guilted her into it regarding child support payments).

Its a lot of money. Alot. Adn unfortunately in our circumstance it made no difference because we have orders drawn up and they are not obeyed. And this is despite being able to prove the mother was drunk andallowing the kids to drink, plus leaving them at home by themselves.

I would suggest you get onto legal aid as soon as you can for some advice. The first party to register at the legal aid office gets the right to uise them as their representative. DP's XW went to every single office in our city and registered with them so we were unable to get any free advice. It was pretty crap.

Lawyers are rich for one reason - and thats family law. Its a great way to spend a whole heap of money...........

BTW - welcome back, you haev been quiet for a while! Hope all is well with you :D

Thanks everyone for the advice. I have told XP to get onto legal aid about this. He discussed it with his son's teacher and integraion aid after school yesterday, just the possibly going for custody bit not all the other stuff, and they said they think it is a good idea. His integration aid (full time) told him she would be prepared to give a statement saying that she feels it would be in his son's best interest to live with the father.

Fi - thanks for the welcome back. Had a few inferiority issues with my ability to mum due to the opinions and attitudes of some, so stayed away.

Kerry, where are you in Victoria? I might be able to recommend someone to you.

I'm a family lawyer, but I'm going to the bar in March, so can't really help. All I can say is that yes, lawyers are REALLY expensive. But you might be able to get around the legal system with some wise words (IYKWIM!)

Let me know.

Thanks Divvy, I'm in Werribee.

I can be pretty intelligent when I have to be and was thinking if he really wants to persue this then I could help him if he can't afford the lawyer thing, I never had a problem with research and was always on the winning side in debates while managing to keep my cool. My XP couldn't do this sort of thing himself. He was kickd out of school and home at 16 and sort of dragged himslef up from there.

Divvy - congrats on the Bar!... what an achievement!

I'd seriously look into doing it yourself, if your x is confident enough to be able to argue for himself. Otherwise it can get really really really expensive (my firm is making $355 per hour for my time!) YOu cal always get free advice from Legal Aid, especially in regard to drafting documents etc.

It will always depend on the particular child. An immature 8 year old's wishes won't carry much weight. Neither will how the parties broke up. The Court does not really care about fault, it's all about who is the best parent for this particular child at this particular time.

The problem that your ex faces, is the recent changes to the Family Law Act. "Shared Parenting Responsibility" means that the first thing the Court must consider (most of the time) is equal time for each parent with the child.

I'd see the Sunshine branch of Legal Aid, just to get an idea of how it might all work out.

Best wishes.

Thanks Divvy.

Have since found out that when he isn't at his father's he is with his maternal grandma who and I quote: "** better sort out what she wants done with her obnoxious brat (this is her own grandson) because I'm not putting up with him much longer, she should just give him to XP"

Anyway I will tell Xp to contact the Sunshine Legal Aide and get some advice from them. Would I be able to speak for him even if we weren't together?

I've been thinking of going back to uni to do teaching but now I think family law might be the way to go?!

You can't speak for him unless the Court gives permission. It's called a "McKenzie friend" and permission is rarely granted. However, you can sit in Court and provide him with support, and also give evidence on his behalf.

I wouldn't go into law if you wanted to make money...

Caro, I am in a private firm, and the hours are not worth the money, trust me.

Same with accounting. I looked at how many hours I would have to work, including all the social you have to do to stay in the "in crowd" and I worked out that my hourly rate would have actually drop. Better off staying as an assistant accountant. Seems to me that most careers the money comes at a price.

Kerry,

Have you thought about engaging a social worker to help your case, and perhaps even legal aid. have you also considered that she might be willing to give up sole custody (subject to visitation rights?).

Good luck and I hope this little boy gets to stay with his dad in a home where is he safe, loved and looked after like all children should be.

And you are a wonderful woman for helping your xdp through this.

Lisa

Divvy - When you put it like that, nah I think I'll stick to the teaching which I know I'd at least enjoy for a few years until I became jaded and bitter about the systems failings.

Lisa - Thanks for the advice re a social worker. They actually have joint custody, 50/50 access by mutual agreement BUT way back when they first split she said unless he agreed to letting her get 100% of all entitlements then he wouldn't see his son regardless of custody agreements. She only wants her sone for what she see's as a financial gain, especially seeing as xp pays for his shoes, clothes, school, etc and she might have him only 1 or 2 nights a week.

Kerry - welcome back. U would definately tell x to seek help from legal aid, they have their own branch to deal with specifically child issues. Thats who helped me when i was having probs with my x re: Xander and child support. ALso, i would definately talk to DOCS, Your name will not be mentioned under any circumstances, adn if the mum gets the documents, they will only say what was said about the situation, your name will be omitted. She may have the child taken away from her, without your ex needing to fight for custody. And if the child is taken off her, and she wants to fight for custody, her history will make it harder for her to get the child back. Good Luck

You're a wonderful person for helping your ex, i hope you work something out... (((hugs)))

Welcome back Kerry, you have been missed!

I'm about to go to the Bar and become self-employed... make money for myself and not for the govt or other people... can't wait!

Brooke - I was married to an engineer too, and it was so "nice" for dinner parties and the like.
Now I'm with a fitter, and I would never go back! For alot of us "white collar" educated girls, the only men that feel secure around us are the blue collared tradey's who reckon there is nothing greater than a girl who can earn a bit of dosh - even if its more than them. :D

Hope all this stuff is going OK Jo.