Astonishing cases – dying man, ex con, gets custody of child over mother

This case is just so horrible to read. Of course, I am the first to say that I haven’t read the details of the case as I won’t be able to find them given the confidentiality/secrecy of the courts, but I am inclined to believe many of the facts of this case. Equally I appreciate that this account is one-sided – I have not heard the father’s story and we all know that there are 2 sides to every story. So please read on bearing that in mind….

Essentially, a mother has lost custody of her children to a man with a vast number of criminal convictions (including sexual abuse) who is dying from AIDS. The father claimed that the mother was discriminating against him on the basis of his AIDS/HIV and the courts agreed with him. The fact that he is dying from his illness raises questions of how well he can parent the child in the mean time. He’s been given 7 years to live and the child is only 7. Her daughter is only allowed supervised visits with her mum despite having reported that the daughter is being sexually assaulted in her father’s house.

This is an interesting dilemma. I fundamentally believe that no-one should be discriminated against and I find discrimination against HIV sufferers to be totally inhumane. I have watched a dying man in an AIDS hospice and felt nothing but profound sympathy for those sufferers. There is no doubt that a parent can parent regardless of AIDS. However, there comes a time when the effect of an illness on a person’s ability to provide care for a child becomes an issue of concern. If a person has become so ill that they can no longer function properly, then how can they be capable of parenting? If they are no longer capable, then surely the other parent should step in in preference to some other carer UNLESS that other parent is deemed incapable.

So what are the comparables between this case and a case involving a parent with a mental illness? A mental illness, if properly controlled, means a parent can live a normal life. They won’t die from their illness and it won’t deteriorate unless the sufferer refuses medication. Someone dying from AIDS is highly likely to suffer from depression, anxiety and stress and be unable to hold down a job once the illness becomes severe.

Yet to refuse an AIDS sufferer parenting on the basis of their illness was held by this court to be discriminatory and yet the judge in my case was able to decide that I couldn’t be the full time carer due to my Bipolar illness.

Can anyone help me to see this differently? Am I missing a point here? These questions are not sarcastic – I genuinely would like to hear other peoples views on this…

The mother claims that her troubles have arisen from challenging the court system – the more she has challenged them, the more they put their foot down and refuse to help protect the child.

When does a parent’s determination to protect their child, turn into “trouble making” in the eyes of the Court (or a “vexacious litigant” in our English court speak). She has been told that she is simply refusing to accept the court’s decision and therefore she should go and get help with coming to terms with the decision.

I often wonder whether any of the family court judges have lost custody of their own children. If they have, I doubt very much that they would maintain that a parent should be critised for “refusing to accept” a decision which the parent knows goes against the well-being of their child. The fundamental parental instinct is to protect your child from any harm, including psychological and emotional harm. If a parent believes that their child is suffering from the result of not seeing them (which has been proven many times in research), then they will fight, argue and refuse to give up until they know their child is being looked after properly.

Surely, the Judges realise that this is simply a fundamental human response to their child’s distress? Do they honestly think that a parent will give up?

If the Judges themselves could talk from personal experience of how they came to terms with having their children taken away, then their assertions about a parent needing to accept a decision may become more credible.

Until such a time, I am inclined to think that every parent will continue to fight for what they believe is the right solution for their child. They will put their child’s wishes paramount to a judges disapproval.

Do read the following account from this mother – it’s heart rending….

http://www.aic.gov.au/conferences/2003-abuse/abuse.pdf