Family Law child's custody between paternal mother and aunt

A member asked over 8 years ago

Family Law child's custody between paternal mother and aunt

I have a daughter under 10 years of age who I have cared for since birth and have sole custody of her. After a bitter dispute my daughters aunt (my sister) has threatened that if I move to another country she will apply for sole custody of my daughter. I have never neglected my daughter and have no issues through DHS, her school attendance is fine. I have recently been diagnosed with major depression, anxiety, panic attacks etc and I want to move closer to more family members who can assist with raising my daughter whilst I seek treatment for my conditions.

Should I start or enquire about a possible AVO against my sister? or contact a lawyer to discuss custody and paternal rights

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Law Advisor Research Team

Researchers at LawAdvisor

Hi there. From the information you provided, it sounds like you want to move overseas with your 10 year old daughter, of whom you have sole custody, so you can be closer to family members while you receive treatment for your mental health conditions. Your sister is threatening to seek custody for your daughter if you do this.

The law has strict rules about when a child can be moved overseas. Generally, this requires the consent of both parents, or an order from the court if a parenting order exists in relation to the child. Any person who has rights of custody’ to your daughter may be able to stop you from removing her from Australia.

Because you have sole custody, it seems unlikely that anyone else can establish that they have ‘rights of custody’ to your daughter and stop you from moving overseas with her. Your sister could only establish ‘rights of custody’ if a court has ordered that she has parental responsibility for your daughter or a right to spend time with or communicate with your daughter.

Irrespective of moving overseas, the law requires parents to comply with parenting orders made by a court. These orders continue in effect until the court orders otherwise. If your sister wants to seek sole custody of your daughter, she would need to apply to the court to vary the original parenting orders that give you sole custody. Your sister would need to prove that there has been a significant change of circumstances that makes a change to the orders necessary.

In Victoria, you have the option of applying for a family violence intervention order (IVO) at any Magistrates’ Court. The court can make such an order if the person against whom the application is made (the ‘respondent’) has: used family violence; assaulted, harassed, stalked or threatened a person; or damaged or interfered with a person’s property, and the respondent is likely to do so again. An interim IVO can be made if the applicant is in immediate danger.

Suggested way forward

Family law matters can be stressful and understanding your legal obligations and rights is very important. It is recommended that you speak to a lawyer about your legal options with respect to retaining custody of your daughter and dealing with the threats from your sister. By pressing the “Take Action” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Answered over 8 years ago Legal disclaimer

1 lawyer agrees with this answer

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Tarek El Amine

Principal at Elamine Lawyers

Hello there,

Can you please clarify on which grounds your sister will seek sole custody ? Also, are you prepare to go through further diagnostic tests in relation to your mental health with a psychologist or psychiatrist so you are able provide a better picture as to pressures you are facing ?

Answered over 8 years ago Legal disclaimer

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Law Advisor Research Team

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Tarek El Amine

Principal at Elamine Lawyers

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