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Ex fails drug test
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Ex fails drug test can I bet getting 100% of the Kids
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Posted 04 February, 2010, 12:13 PM
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Hi,
3 years ago my ex and I went to court about our kids the judge ordered a drug test on both of us as he said I took them and he did not, subsequently he failed the test and I passed. He talked me out of going to court and I agreed to 50%. I have since moved on and bought a house with my partner of 2 years and this has mad the father very jealous. He has made many threats to us both which we have ignored but recently came ove and degraded me & abused me verbally in front of the kids so I slapped him in the face. He got charges put on me and an avo the court cleared the charge as it was so minor but put the avo in place for one year. I believe he is still using drugs when the kids are with him and I want him tested. If he fails again do I get the kids? How do I get an immediate test done.
My eldest is only 6 and tells me he preffers my house (he has told me this under his own free will) as he has room and 3 stepbrothers. His fathers house is small and dirty and cluttered not to mentioned over crowded 3 bedroom house with 3 boys one teenage girl grandmother and father. He sleeps in seperate grannyflat out the back no where near the kids.
Do I have a chance?
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Posted 04 February, 2010, 09:01 PM
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Silver Member
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Maybe roll again and try for the community chest...see how your luck pans out on that one!! 
I rolled my own dice posting this...we'll see how my luck pans out too!!
"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
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Posted 04 February, 2010, 10:16 PM
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Percolo Alio
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Speckle,
you do have a chance but I'd guess that the chance would be slight. I don't think the avo against you will help, well perhaps more the fact that you resorted to physical violence in front of the children. I guess that the other parent didn't reciprocate, which could well be used to advantage. Agreeing to 50%, if that resulted in consent orders, would mean that you have to overcome the precedent set in Rice and Asplund, basically that there would have to be a powerful enough change in circumstances. I don;t think I believe the other parent is taking drugs would cut it. If the decision maker orders a drug test and it is positive, there is still no guarantee that the decision maker would make a decision that denies the children their humane right to know and be cared for by their parents.
Perhaps you should go through the family law databases on austlii and do a search for drugs and then read the resultant decisions. I got 987 hits searching for the word drug in the Family Law databases. Reading these would perhaps give you an indication of how drug usage is seen y the courts.
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Posted 04 February, 2010, 10:49 PM
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Without even looking at the legal aspects of it, just common sense, I would be willing to wager large sums of cash that you will not get %100 care on the basis of him failing a drug test.
First of all, there are many many parents out there being treated for drug habits (both legal and illegal) by doctors and community workers who are aware of their addictions, yet do not have their children removed from their care. Using drugs or suffering from addictions does not automatically require removal of children. If people are willing to make efforts to sort themselves out, the children are fed, clothed and loved, and there is no harm coming to them, there seems to be no reason why these parents can't continue being parents. Hell, there was a mother in court recently for getting her 5 yr old drunk, and this was the SECOND time she was busted. She still has her child. It's not that simple.
Second, a positive drug test does not prove that he has been using drugs while in the presence of the children, or even on a regular basis. Many drugs show residual traces long after the initial consumption.
At this point you are only suspecting (or hoping?), so I think you'd be hard pressed to prove that he has a problem that is affecting the children or his ability to care for them. He could probably argue that him using drugs whilst not in the direct presence of his children is certainly no worse than you resorting to physical violence upon their father whilst in their direct view.
Also, your son may well prefer your house, and it's great that he can come back to it. But I preferred my parents house over my Nan's when I was a kid, and that didn't stop me staying with my Nan once in a while. I don't think that's any reason for him to not have significant time to develop a relationship with his father. You could always remind him that he's lucky he always gets to come back to your house if that is the one he prefers.
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Posted 05 February, 2010, 09:46 AM
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Silver Member
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Here's my better thought out reply.
I have a large extended family meaning aunts/uncles cousins etc. and so family dynamics has been sometimes strange to say the least. I've always thought that if I wrote a book about some of the things that have occurred in my extended family it would be either a best seller or at least give some of soap operas out there some script ideas
Anyway, as you're probably aware, unless in exceptional circumstances (and this doesn't just apply to the Courts as it is also reflective in decisions made by various children's departments) the general view is that children benefit from a relationship with both parents as opposed to no relationship at all. I believe this is why some decisions (at least the ones I've read which isn't all that extensive as I'm not part of the legal profession) have constraints imposed around the contact which enable relationships but still provide a safety net for the children from harm.
In relation to drugs (and please remember I am talking from a viewpoint of exposure not legally) I came to learn at quite a young age through witnessing things that went on in my own extended family (children involved) that where drugs are concerned there is a large push by departments/authorities for the drug user to have a continued relationship with the children, as drug addiction (like many things) is considered as an illness derived from something else and I guess "curable". I won't give you my actual opinions of the time as they are somewhat tainted due to my exposure with those family members and it would not be at all fair on those people who really have worked hard to get through an addiction. Well done for any of you out there by the way!!!!
Anyway, although during this time there were many instances where the children were taken away from the parent due to drug dependency and placed in anothers care, the carer role was always seen by the departments as provisional and temporary (sort of like what I found out when I enquired into being a foster carer pre my own children) , meaning that their parent was allowed to visit the children at the carers home (drug affected or not) and if the parent was taking the appropriate steps to get "clean" (baring in mind that for this parent "clean" meant going on to a legally prescribed drug of a similar calibre) the departments would review the children's living arrangements to try to place the children back with the parent (which happened on several occasions). So in effect even during those periods where the parent was still a medically prescribed "drug" user, as it was deemed that there was no risk of abuse from the parent at these times and also the possibility of replacing the children with the carer, there was still more encouragement for the relationship as opposed to it.
The children are now young adults and I see them and their parent sometimes and even in view of the obstacles they faced during their childhood with support from my own parents and other family members (and even the efforts of their own parent who really has tried) I'm pleased to say that they have done quite well.
So I would take a wild guess that under the circumstances that you describe, especially in view of you saying that the child also lives with his grandparents (who can offer support to the child and father), that the likelihood of you getting 100% custody of the children is not very probable.
Cheers
"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
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