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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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I have been in the family law court 18 months this time.

Customer Question

I have been in the family law court 18 months this time. After ignoring a report everyone requested from a single expert witness the court has decided a trial is now necessary. Due to the cost the mother who has been contesting my claim to custody of my daughter has withdrawn now i ask if i as the paternal parent still have to go to trial as the child is currently residing with a gaurdian who now seems to have their own agenda towards custody. Do i now have to fight her in a trial as she is not a parent and i am. I wonder if she has any right at all to custody as her lawyer is now making statements to the court questioning my commitment because i refuse to sell my family home and move to where she lives. Do i have any rights as her father?
Submitted: 11 months ago.
Category: Australia Law
Expert:  Patrick H. replied 11 months ago.

Hello, unfortunately if the person has been acting as the guardian to your daughter then yes they have status to contest custody with you. That said, all things being equal, a court to grant custody to a biological parent over a non parent guardian, so if the mother has withdrawn, your prospects of obtaining custody may be better.
Courts decide custodial issues based on what is in the best interests of a child not the best interests of the parent, so just because you area parent does not mean the court will agree that it is in your child's best interest to live with you, however, it is fair to say that there is a strong presumption that parents should live with a parent or at least be given every opportunity to maintain or develop a strong relationship with their parents. This effectively means that parents are usually denied custody only if the court is convinced the parent is unsuitable as a parent, or that there is some special reason that custody should be granted to some other party.

No doubt in your case the lawyer for the guardian is trying to impress upon the court that the child would be better off not relocating, which may be true, but of itself the court would have to weigh that issue against the practicalities of your moving, and whether or not the benefit of living with a parent outweighs any detriment caused by relocating. You may therefore be able to counter that argument by explaining why it is impractical to move, and perhaps highlighting some of the benefits that the child may enjoy by relocating (e.g. some of the following might apply: access to other relatives, better educational opportunities, better health services, healthier lifestyle, etc).

I trust the above assists.

Good luck and please rate my answer.