Custody Concerns with Absent Parent
The client is based in Western Australia and is concerned about potential custody issues regarding their child with an absent parent. There are no current custody arrangements or legal agreements in place. The parent is not named on the child's birth certificate and has been absent for nearly 3 years. The client is apprehensive about the possibility of the parent initiating court proceedings to gain access to the child.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat are the rights of the absent parent in terms of seeking access to my child if they are not named on the birth certificate?
In Australia, if a parent is not named on the birth certificate, they do not automatically have parental responsibility. However, they can apply to the court for a Child Arrangements Order to gain access. The court will prioritise the child's best interests, considering factors like the absent parent's relationship with the child and their absence. It may be necessary for the parent to establish paternity before proceeding with any applications. Consulting with legal counsel can help prepare for any potential legal proceedings.
How does the absence of any legal custody arrangements impact my situation if the parent decides to pursue a court order?
The lack of legal custody arrangements means there is no formal agreement governing the child's living or contact arrangements. If the absent parent pursues a court order, the court will prioritise the child's best interests. Given their absence and lack of parental responsibility, the court may consider these factors when deciding on custody or visitation rights. It may be helpful to prepare evidence that demonstrates the current stability and welfare of the child in your care.
What steps should I take to protect my child's welfare and stability if the absent parent attempts to gain custody or visitation rights?
To protect your child's welfare, consider gathering evidence of their current stability and wellbeing in your care, such as school reports or documents showing their daily routine. Keeping a journal of any attempts at contact from the absent parent may also be beneficial. Consulting with a family law solicitor to discuss the specifics of your case may be prudent.
Are there any potential legal implications if the absent parent seeks to establish paternity after being absent for nearly 3 years?
If the absent parent seeks to establish paternity, they must apply to the court for a DNA test to confirm their relationship with the child. If paternity is established, they may gain parental responsibility. The court will consider the child's welfare when deciding on any applications related to contact or residence orders. Their absence could influence the court’s perspective on commitment, but does not automatically disqualify them from seeking rights.
What would be the process and possible outcomes if the absent parent were to take me to court over custody or visitation?
If the absent parent takes you to court for custody or visitation, the process typically starts with them applying for a Child Arrangements Order. The court will focus on the child's welfare, and the absent parent may need to establish parental responsibility first. Possible outcomes may include supervised visits initially, or structured visitation rights, depending on what the court finds to be in the child's best interests.
