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.

I might as well add explanation for my responses actually.

I had this happen to me. In the 8 years since our separation I had 2 residency battles with my ex husband - whom I now get along fine with. The most recent has been in the last 2 years and was fuelled entirely by his parents who brain washed him into thinking that removing the children at a time when I was struggling after fleeing domestic abuse in a subsequent relationship was a good idea.

I can tell you quite categorically that although my mental state was precarious at times, the additional court battle to ensure my children remained within the home in which they had been happy for the last 8 years was hugely damaging for all. The additional stress delayed my recovery and in turn theirs.

What the ex in laws failed to recognise is that despite the fact that I had been in an abusive relationship which to some extent had affected my health and also the emotional state of my children, I chose to leave and rebuild my life for the sake of my children above all else. In 2 years I secured my own home, my mental health, a job, friends and support network which has served both myself and my children fantastically. We are now happy and sociable within a wonderful community. The children and I have turned a corner but that was very much under threat and certainly delayed by 12 months of stress through a court battle for residency.

Last weekend my ex husband stayed in my house with the children on one of his visits. The previous visit we decorated the boys' bedroom together. It is only through his recognition of the need for a supportive approach and my acceptance of his finally offering this that has enabled us to do the best for our children. Bitter court battles and unfounded accusations against me did nothing but undermine that possibility.

It is wrong to campaign against this woman OP because she is the mother of this baby. Why do you fail to acknowledge that every word against her character, every move to distance the relationship between mother and child is a wound inflicted upon not only this woman you clearly dislike but against the mother child bond and ultimately the baby you hope will benefit from a secure and loving stable upbringing?

Oneforthebaby, Id concentrate on accepting helpful advice from people and try to avoid getting bogged down in arguments with people who have an axe to grind.
Try this site there have been people there who have found themselves in a similar situation to your brother.
He needs to proceed with caution and sensitivity towards his wife, definitely not putting any pressure on her at this delicate time.

No, I don't like the pasting you and your brother are getting either. You aren't shit at articulating yourself at all - it's just that some posters will always see the man as being at fault no matter how badly behaved his partner has been. And if all else fails there's the "well we only have his word for it" stance. We only have the word of every single poster here about any situation. Mumsnet wouldn't function like it does if we viewed everyone's posts with such suspicion.

I hope some people with some constructive advice are along soon for you. I think my advice to him would be to keep things as amicable as possible with her so that he is able to have lots of contact with the baby when it is born. Any talk of courts, custody or court orders may well scare her and lead her to running away, and it will be a whole lot harder for him then. But he should quietly research what his options are should things break down so he is ready to act should he need to.

But let's hope he doesn't need to, eh?

Hobbgoblin that was a great post and I am glad your situation has resolved itself with such a happy outcome.

I don't agree that your situations are the same though. You were not using access as a means of control, nor were you putting your own needs before those of your children. You left your abusive relationship for the emotional well being of your children, this woman is willing to sacrifice that for the sake of the man she has been shagging behind her husband's back.

I agree with Cory of course that different countries have different laws and practices. I'd suggest that the OP's brother should consult an Australian lawyer.

I do recall reading an article that suggested that Australia has had changes to the family law act which gives both parents equal decision-making powers. This might provide your brother with a glimmer of hope.

But to reiterate my earlier posts, please concentrate on the facts rather than the emotive stuff. This is what the courts (any courts) will focus on when coming to a conclusion as to what is in the best interests of the child. Also it's damaging for you and your brother to be caught in a spiral of bitterness and accusation.

Like surfermum said he absolutely needs to keep things as amicable as possible with his soon2be ex. He shouldnt start proceedings of any kind at the moment. He needs to bite his lip and support his wife at the moment however he feels.

Thanks for some more constructive posts. hobbgoblin, thanks for sharing your experience. I can well understand your sensitivity to this issue. You have clearly done a brilliant job of getting yourself out of a stressful, abusive relationship and I don't doubt for a minute that your kids should be living with you. I agree with frankbestfriend, in that yours and my SIL's situations are different, though. You were being abused. My brother, to my knowledge, hasn't been abusive to his wife, but she has been communicating with him in a way which, by Mumsnet definitions at least, would be considered emotional abuse - and for the best part of 18 months now. So yours and my brother's situations, relationship-wise, are more similar than yours and my SIL's. Please try to see that.

My brother and I are close, and he has shared these emails - like frankbestfriend suggested - to gain another perspective on the situation from someone close. He hasn't posted them to all and sundry. He is thousands of miles away, with no family in Australia. Sometimes forwarding a few emails to me to read with fresh eyes, when he has doubted himself/her/the relationship, has helped give him a fresh perspective. If someone is experiencing gaslighting in their relationship, as with other forms of emotional abuse, it can be difficult to retain your own sense of self, your self-assurance, your sense of what's right and wrong. I can understand my brother asking for a second opinion by sharing some of his wife's emails with me - and I have been shocked at some of the things that haven't bothered him, and that he has believed have been his fault, on the basis of her reasoning.

Thanks for other posts. Sorry, I don't have the time this morning to respond to them all. ElenorRigby, you're aboslutely right. I encouraged my brother on the phone yesterday to act with as much dignity, civility and respect towards his wife as he can muster, in what must be a very painful situation. It will pay dividends down the line for the child. And Surfermum, thanks for your support. Quietly researching the options is what he has considered doing.

Oneformybaby, do try that link, there are people there who have been through similar situations and will have far more experience and insight than most here.

i don't get it! she is pregnant with your brother yet she has run off to her lover and he will help raise the child as his own?? i presume she is still with this other man? i dont think you can be 100% sure this baby is your brothers if they required IVF then suddenly they conceived naturally, seems a bit fishy to me.
sorry if i have read this wrong!

Fathers have to be whiter than white in these situations, he needs to get as much information as possible and proceed very very carefully. Behaving rashly, putting pressure on the mother or being un-supportive will put him a bad light.

Yeas I'd be after a paternity test too.... assuming she is genuinely pregnant. She may not have taken any flights around the time of conception, but the OM could have done.

Also, assuming your db is a UK citizen, now he's seperated and unemployed does he have the right to remain in australia?

I know my situation is different in several respects but the points that I feel are pertinent are as follows;

My mental state and balancing this with meeting my DCs needs
The negative affect of having to fight for my life with my children
My ability to be a good mother despite being a fruit loop at the time
The dismissal of the option to support me rather than fight me in the name of removal of the children from a negative situation
The benefit of cohesion between exH and me now in contrast with the earlier position of complete opposition and attack

It isn't about who is the better parent it is about parenting well together but separately as individuals. Acheiving a supportive maternal and paternal structure with the support of extended family as a foundation.

I may be extreme in my belief, but unless a parent is utterly incapable of looking after themselves either through mental or physical incapacity then the only role of outsiders is to support the existing strengths that individual has as a parent and to improve on weaknesses.

Competing for 'custody' is a solution but it is not the most considered, mature or self sacrificing option. It is probably easiest and most ego boosting for the parent who wins in court, and whilst no child needs a martyr as parent they do need a mother and father who will work together to put the needs of the child first as opposed to their own.

Not wanting to really get too much into this but I agree that OFMB you have to encourage your brother to be supportive to his wife, a horrible court case will be of no benefit to his unborn child.

Making assumptions on her mental health is a big no no for me, you are not there, you do not know the full story, only one side of it.

Encourage him to speak to an Australian family lawyer ASAP to allow him to explore all options.

You have stated that she will not accept support from you or your family, offer it anyway. She is pregnant with your DNiece/DNephew. If she refuses, well at least you tried.

Try to take a step back, easier said than done I know.

bethoo you said
"i dont think you can be 100% sure this baby is your brothers if they required IVF then suddenly they conceived naturally, seems a bit fishy to me."

WE required fertility treatment, TTC for 8 years and having several cycles of treatments, fell pregnant naturally. It CAN and DOES happen, you would be surprised at how often. I think assumptions like you stated can only be harmful in this delicate situation. IMO

I have to say - I have never been in this position at all so my opinion isn't in any way coloured by personal experience. My reservations come from the very first post and the fact that the OP's brother has told her that his wife has gone to see her ex-lover despite the fact that her ex lover has sent their personal emails to her brother and wants nothing to do with her.

OP - I don't think you are atriculating the situation very well TBH as there are loads of ommisions, not least what it was that your brother did to destabilise the marriage. Without knowing then it's hard to say if his wife's behaviour is uncalled for or strange.

OP, Can you explain this:
"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."
What did he actually do, please? You seem (perhaps unknowingly) to be being a bit cagey about it. It could perhaps have a bearing on your sil's reaction.
Also, when did you last see/speak to your sil? Is your whole tale second-hand from your brother?

namechangedforareason i dont think my statement harmed anyone since we all know that she was cheating on her husband, whether they had IVF or not she could still be pregnant by her lover.

Are there any legal presumptions of paternity within marriage in Oz?
I mean culd she turn up to the registry office and register someone else or NO ONE as the father
In which case he would have to fight to prove paternity before starting a custody battle.
If she is as devious and unstable as you suggest, this would be one way she could solve the problem.

wanted to add to what frank and sleepless have said in defence of the OP

There is a ridiculously one sided assumption on here from dittany and others that the child is best with the mother no matter what. I simply don't agree with this - there are many bitter and twisted mothers in my experience who have, through the British legal system, been able to use their children as a control weapon against their exdp's. When you consider Sweden and some other societies, it does lead you to question how this assumption of one-sided residence has survived for so long here in a so-called civilised society

And for the record, I am not a man

but why do 'civilised' societies think it's ok to separate children from their fathers?

Well said MrsMichael!

but this is a very different situation to deciding how to parent a child when a relationship splits. This child isn't even born yet, it's barely out of the first trimester and the suggestion is that the father have main custody if the baby once it is born, which for breastfeeding alone is impractical.

This isn't really a discussion about society and it's view of fathers as parents, it's a thread about a specific case which is asking for advice on how a father can gain rights of access (what seems like main access) to a child not yet born and involving a woman who is clearly going through a tough time but has been tarred with some kind of Mental illness brush by the father and the father's family.

I am going to leave this thread alone now because it's really pissing me off.

'a woman who is clearly going through a tough time'

Imagine for a moment that this was a thread about a father leaving his pregnant wife for another woman. Would there be this huge outpouring of sympathy for him? Commiserations on the terrible time he is going through? Would we be questioning how his wife dare show his incriminating e mails to her friends and family?

No, we would be jumping on his posts like the arsehole he is.
Shocking bias shown on this thread, imo, simply because the person in question is a pregnant woman and not an expectant Father.

Franksbestfriend, I am sure my reaction would be different. The fact that this woman is pregnant and this thread is about ways in which to remove that unborn child from her care when born means I have reservations about the whole thing. I just wouldn't have these reservations if it were just a thread about a man having an affair and leaving for another woman. It's completely different.