What Happens when the Custodial Parent gets a Custodial sentence?
I have shared care with my ex of two of my kids aged 9 and near 11.
Their mother has committed an offence that is shortly due to see her incarcerated for anywhere up to 4 years or possibly more. In reality she will only serve 1/3 of that so in all likelihood, will be out in 12-18 months depending on actual sentence length.
The Mother and I are the Natural Guardians of the children and there are no others. She is adamant that the children will not live with me while she is inside but my lawyer does not think there’s anything she can actually do to stop me just picking them up after D-day and just taking them.
I’ve tried to raise this with her family but to no avail. They’re equally determined not to let it happen.
Some background – she remarried and has another child with her husband and believes he is going to stand by her and look after all the kids while she is away. Unfortunately due to the nature of her crime, it’s very unlikely that they’ll be able to keep their home. She’s not told the children yet that this is likely to happen and is telling them that things will just stay the way they are if in the event she does actually in end up in prison.
I work from home and have the support of my employer to take on the kids full time. I’ve made arrangements to see to their care when I have to travel for work and they’ll stay in the same school with as little change to their routines as possible.
I fought her in Family Court for 6 years to even get a Parenting Order in place as she believes even still that I should not be in their lives at all. However there has been a period of detente over the last four years where things have worked out for all concerned. I’ve always paid child support as per IRD etc and have the balance of a hefty legal bill to work through over the next few years to prove my commitment to my kids if nothing else!
Does anyone else have any experience or a view that I can consider moving forward to tackle this issue? I’m well aware that it’s always better to get agreement from everyone concerned than end up in Family Court but I doubt I’ll have that luxury.
Don’t be surprised if she doesn’t end up in prison; women tend to get treated with unbelievable leniency compared to men for the same crimes.
In case she does go to prison, seek legal advice by buying an hour here and there of your lawyer’s time, but represent yourself and prepare your affidavits and correspondence yourself (paying the lawyer initially to clarify what you need to include and then to give you recommendations for editing the draft before completion). Probably it would be best to put in an urgent application to take over day-to-day care. You will save a lot of money doing it yourself and the outcome is very likely to be as good or better. Seek advice from Allan Harvey (firstname.lastname@example.org) or another McKenzie Friend that he might recommend.
Of course, if your lawyer recommends simply collecting the children then lay low until the time comes and do just that. Probably better to have your application and supporting affidavit prepared and ready to submit if necessary.
Just a layperson’s suggestions.
Keep the children with you.
The parenting order is for you and your ex, not her gardner, uncle or new partner. Let the new partner apply for care, he has no standing unless the parenting order specifically addresses him.
If you value anything about her family, the children’s grandparents on her side for example then keep those relationships going for the children.
Let the children settle in to a routine with you first.
They don’t need to be around her house when she is banged up. The conversation there will perhaps at times be around jail, visiting times, how long, will she get parole etc. your children don’t need to hear that.
If she goes to jail she wont be paying child support, but if you act now to get custody asap they can live with you forever as she will have to apply to family court to get visitation. and she will have to start paying you child support when she gets out. Don’t wait act now, at least apply in writing for full custody. (ask ya lawyer first).
“I fought her in Family Court for 6 years to even get a Parenting Order in place as she believes even still that I should not be in their lives at all. However there has been a period of detente over the last four years where things have worked out for all concerned. I’ve always paid child support as per IRD etc and have the balance of a hefty legal bill to work through over the next few years to prove my commitment to my kids if nothing else!”
Statement like this really disturb me. As a Father we are expected without a doubt that we need to pay Child Support even though the Mother prevents us for seeing our children. As long as there is no evidence (note evidence not an accusation) of abuse or violence then there should be no restriction on visitation at a minimum and ideally joint custody.
But I forget that all Men are deadbeats who don’t give a shit about anybody but themselves and are rapist/domestic abusers/pedophiles automatically unless we spend years and thousands of dollars to prove otherwise.
I agree with all the above
Paramount is children’s safety and well being, put in-immediately a without notice change in parenting order or removal of a guardian and or parent. As she gets time inside, the Judge must rule within a certain time frame. Make sure the kids are in your care when you do it and inform the school so that the children can be protected. I can guarantee it will get nasty Davo but hang in there and don’t give a shit about child support go straight to Winz and get assistance.