Where does my brother stand WRT custody of his unborn child?

[OneForMyBaby]

My brother, who lives in Australia and is married to an Australian, has been having marriage difficulties for about 18 months now. His wife had an affair throughout last year, and he did all he could to put right his contribution to the strain their relationship had been under, and to repair the marriage. From the beginning of this year, reconciliation looked likely.

However, on Friday, she took off unexpectedly on a plane to visit the man she was having an affair with. She said she'd be back Sunday, then Thursday this week, and now it's Saturday. My brother doesn't trust her, and obviously any progress with repairing their marriage has come undone.

My brother wants a divorce. Bittersweet news is that his wife is three months pregnant (with his child). They had fertility treatment, which was unsuccessful, before her affair, so didn't think they could have a child without intervention. They have now conceived naturally.

My brother has some reservations about his wife's mental health, because of the way she has behaved towards him over the past 18 months and some of the things she has written/said to both him and her lover. She seems very unstable. She told him as she left on Friday that if he considered leaving while she was away, that this would be extremely selfish of him considering he is due to be a father - in spite of them both knowing where she was going. This is at the same time as emailing her lover praising his willingness to raise another man's child - and another email (to the lover) saying she will have a termination. He (the other man) has said he wants nothing to do with her and didn't want to see her (he forwarded all her communication to my brother).

My biggest concern in this soap opera, and I think my brother's too, is that his wife will very likely be raising his child as a lone parent with mental stability issues. (Her mother experienced mental health problems during her childhood, and she and her sisters lived with their father when he and their mother separated.)

He knows, from her behaviour over the past few years, that she will likely use the baby as a bargaining tool and leverage against him. He isn't certain what he will do yet, but wonders under what circumstances he might be able to gain custody (or at least primary carer status) of their child. Anyone know anything about this, particularly in an Australian context? Thank you.

OK, I could have been much more concise with my OP (), but anyone got an ideas?

Good god, how awful for him. I'm sorry I have no useful advice, just wanted to bump this for you.. best wishes

Come on someone must have some advice for this poor MN'er - you must be distracted with worry for your brother and his child.

Anymore news on situation?

eeks
Unless she is a real danger to the child, very little
Sorry

Thank you for replying. Yes, it's awful. I implored him months ago (having been through a separation myself) to use contraception until he felt absolutely certain the marriage was strong. I don't think they expected to be able to conceive, TBH.

I really feel for him. He has been treated appallingly by his wife, and he has put up with more than most of us would. He was having a tough enough time with the relationship before the pregnancy.

I'd just love to know (and I think he would to) where he stands with regard to custody of the baby. At a guess, I would think the mum automatically has primary carer status in this sort of situation, unless some kind of psychologist's report recommends otherwise.

We are concerned that, if she has the baby and they are not together (which I bloody well hope they won't be!), she may obstruct access, bad-mouth my brother to the child as he/she grows, deny my brother's family access to the child (she has told us what little she thinks of us all), manipulate with money, and be a generally unhealthy influence on the child - at least if she remains in the mental state she's been in over the past few years. Surely, if my brother were to be granted custody and would cooperate with access arrangements and be a more stable influence during the child's childhood, this would be the preferable arrangement? The trouble is, only we - family and friends - can see that. This is where something 'official' is needed I think.

dillydally - no more news. I spent a few hours on the phone with him today. He isn't expecting her back until Saturday, although that could change. He was made redundant a month or two back, so can't afford to move out before she gets home. And he's due to be godfather to her sister's baby, at her christening on the weekend. What an unholy mess!

Thanks for your post, dittany. I do agree that, in the vast majority of cases, it's better for a mother to raise her own baby. But in this instance, we are genuinely concerned about her capacity to raise a happy, healthy child. I think it would be better for a child to be raised by their averagely balanced father, with access to their mother, than by their unstable mother with no access to their father - don't you? And from what I know of his wife, she would not welcome what little support we could provide from several thousand miles away.

My brother isn't actively trying to involve us in his plans. He is simply wondering out loud what all his options will be come the baby's arrival, in terms of how much of a father he will be able to be to the child and what kind of childhood he can help provide. I am asking about this on his behalf. He hasn't asked me to.

And I would reiterate that they had had unsuccessful IVF. He was having unprotected sex with his wife on her instigation, and with whom he was rebuilding his relationship, and with whom he didn't believe he could conceive naturally. Not so unreasonable, I think.

Blimey dittany - you're being a bit harsh. Of course he isn't perfect nor devoid of responsibility here. Agreed. But he is in a mess that is not altogether of his making, and there's a child's wellbeing at stake, and constructive advice rather than judgement would be helpful.

Why is he so confident he is the father?

Labelling her as mentally unstable due to her mother's past mental illness seems a bit harsh

EldonAve, 'labelling' her - I don't like it. I hear what you're saying. I don't know how else to describe it - her lover's called her crazy, another family member thinks she's got a personality disorder. She hasn't 'just' had an affair, if that makes sense; it's the way she has behaved around her infidelity, telling my brother he deserves it, threatening him if he considers leaving, etc. It is as though she has had some kind of a breakdown - I don't know how else to explain the person she's been in the last 18 months or so. Without a diagnosis there, what are we supposed to say to explain her out-of-the-ordinary behaviours and reasoning? I don't know. I'm not meaning to cause offence, though, or be unduly harsh - and I'll add that we wonder if she may be unwell not because her mother was, but because of the person she's been in recent years. Knowing that her mum has a history of mental health problems has simply made us wonder if they could be hereditary and if she needs help.

He knows he's the father because the man his wife had the affair with lives a flight away, and she didn't go anywhere around the time of conception ... unless it's someone else's altogether?

It behoves him to help her get the support that she needs so that she can be a fit mother. It would be extremely unusual for a father to be granted custody of a nb - she would need to be shown to be a danger to the child - unusual - and the health-care professionals will be working to facilitate her looking after the child. She's clearly not in a good place now but in 6m time when the child is born she may be. Cordial relationship where there is joint-custody is probably what he should be aiming for.

Just a very quick post as I am on my way to bed and just saw this. I think you have to be very careful about applying the law of England and Wales to this situation (which is presumably what most people on here will have had experience of). In Australia, as I understand it, there is an equal shared parental responsibility presumption (but only a presumption not a rule). I'm not sure how that would apply to a newborn. I am no expert on Australian family law so am fully prepared to be corrected but my understanding is that he would be in a stronger position that he might be in the UK. I would not think in terms of 'custody' but in terms of working out a situation in which they can both be involved with and support the child (unless the mother turns out to be harming the child's welfare) as that is what I understand the law promotes as being best for the welfare of the child.

Thanks, Catz. Helpful advice. dittany - thanks again for taking the time to post. I appreciate some of what you are saying - there is some truth in it. But you're still coming across as incredibly harsh, IMHO, and not appreciating the situation as I understand it to be and am trying to describe it - and I realise that could be ambiguous communication on my part.

I honestly believe his wife is behaving outside of the realms of typically irrational break-up behaviour, which has raised and is raising concerns among family and friends about her mental wellbeing. And we are concerned how this, in turn, might impact on her child and her cooperation in involving my brother in the raising of that child, while he could do an adequate job if he were allowed.

Catz is right, there is a presumption that there should be shared care, but it is still only a presumption and it can be displaced.

But going for full on residence of a new born would be a very difficult proposition and I don't think he'd get anywhere without some cast iron medical evidence that the mother poses a physical danger... he'll run the risk of looking like an irrational bully.

Australian law also demands compulsory mediation before you can go to court, unless it is an emergency. This must be the best way forward if there isn't imminent risk to the baby.

How awful for him but also how awful for her that there is the potential for her mother's past mental health issues to be used against her to restrict her access to her own child.

Just because someone may or may not have mental health issues does not necessarily make them a 'bad' mother ffs!

And being a lone parent does not make someone an unsuitable parent either!

And I cannot condone you judging your sister in law on your biased brothers opinion!

You should be offering support and doing all you can to help during the pregnancy (seems very stressful already!) You should bEthinking of the unborn baby and its needs, not your brother's desire to separate mother and child!

FFS!

dittany, I am aware of it, yes. I practise attachment parenting, so it's not lost on me at all. But I don't see it as black-and-white. Physical damage to the child by the mum is unlikely, but psychological damage is at the very least possible. And not because of his wife's mum's mental health history, beanieb (which potentially explains some of her behaviour) but because of the person she has been, in her own right, for about 18 months now, with occasional glimpses in the years beforehand. It isn't clear at this stage, dittany, if her character shift is entirely to do with the breakdown of her relationship with my brother, or because of an unrelated, underlying problem; IMO, it's outside of the realms of normal break-up behaviour. Time will tell. In the meantime, the focus is on the child having a stable, nurturing start in life, with ideally the involvement of both parents, and my brother is looking at how this might be achieved.

Thanks for posting.

erm i think people are forgetting some facts that the OP posted - the wife has gone off to see the man she was having an affair with, while trying to emotionally blackmail her husband into staying,with the pregnancy! that alone says a lot about the situation. i think some people are being unnecessarily harsh to the OP, after all, she is only posting out of concern for her brother, there are ways of criticising constructively if thats what you want to do.

of course it is a big step to try and separate the mother from the child, and there isn't any proof that she is going to be a bad mother. i think your brother needs to decide whether he wants to be with this woman or not, and then how to deal with the consequences of that decision.

Bloody hell. Either I'm doing a crap job of articulating myself tonight, or some folks are feeling a bit sensitive. atigercametotea, I agree. I am a lone parent and I don't think, on that basis, that I'm unsuitable for the job. And of course mental health issues do not make someone a bad parent per se!

My brother's wife will accept no support from us, I am almost certain of it. And we live thousands of miles away, so what do you suggest we do? I am thinking of the unborn baby and its needs, and for the umpteenth time, it is not my brother's desire to separate mother and child; him having primary carer status is one option he is considering, as a potential way to provide the child with what he believes will be a more stable start in life. One option.

I am not impartial here, I know that. But in fairness to my brother, he has been beating himself up for the best part of 18 months for what (relatively small) part he contributed to destabilising the relationship. Yet I have seen some of the emails she has sent him over this time, and she has been nothing short of emotionally abusive and manipulative. If a husband/partner on here treated a Mumsnetter in this way, and she maintained "but he is a good father", everyone would be so quick to leap on the he-can't-possibly-be-a-good-father bandwagon. Why doesn't it work both ways at least a little bit?

Nope, but really bad behaviour in a break-up is potentially an indicator of character and mental wellbeing, and in turn parenting capability. I know this from experience.

And my OP and subsequent posts have been about asking under what circumstances my brother might be able to obtain either custody or primary carer status with a view to the mum being heavily involved. He's not trying to wrench the child away from the 'incubating' mum and it have nothing to do with her, which some colourful posts might suggest. He has genuine reservations about her capacity to mother his child responsibly, and - I think quite legitimately - is wondering how seemingly unwell/unstable a lone mum 'needs' to be before changes in custody or primary carer status might be considered. He is not actively trying to engineer custody. He is the father of the child. He has grave concerns about the mother's capacity to be a decent mum (however subjective these may be). He wants the child to be OK. I can understand him considering the options we are discussing here, dittany, however unpalatable they may be.

I think we don't know what she will be like as a mother. Her relationships with men clearly are not healthy, but she may be a great mother, and anything else is premature.

Am not sure that it's a great idea to paint her a mentally unstable and therefore unfit mother.

If your brother is married to his wife, and she has a child, even if the child is from an affair, the presumption is that he is the father. So, he will assert his rights by marriage and by being on the birth certificate. Nothing will be done legally until after the baby is born, unless there is evidence of abuse and even this will need to be extreme -- i.e. physical harm to unborn child.

Thanks, SilverSixpence. Thanks for picking up on the gist of what I'm trying to say.

My brother doesn't want to stay in the marriage, he is sure of that. So, knowing he will be separated/divorced from his wife by the time his child arrives, and with the reservations I have explained about her wellbeing, he is wondering if him being the non-resident parent seeing the child every other weekend (or whatever the Australian convention may be) will really be in the child's best interests.