Courts grant the mother custody even though she admitted to smoking marijuana

A recent custody dispute reported in the Brisbane Times had seen a five-year-old child placed in the care of his mother, even though she admitted to smoking marijuana when her son was not around.

Despite the father’s concerns, Federal Magistrate Neville found it was in the best interests of the child to remain living with his mother, but made orders for her to undertake both random and regular drug screening tests. If she returned positive results, the child would automatically live with his father and have only supervised visits with his mother until she shows she can live drug-free for a year.

The full text of the judgement is quite an interesting read. Magistrate Neville explained that in this case, the child had been living primarily with his mother and the father’s main concern about the child’s welfare stemmed from his knowledge that the mother used recreational drugs. The father described his ex as a “loving mother” but said he was afraid that his son would be exposed to unsafe situations in his mother’s care and adopted what the Court called an “extremely intense” approach to parenting.

His concerns led him to take his son for drug tests without the mother’s knowledge or consent, and he was highly critical of the mother’s parenting style. In turn, the mother described the father as over-protective, and she claimed the father overmedicated the child.

The Magistrate noted that the conflict between the parents was detrimental to the child’s welfare, but hoped the parents would try to compromise for the sake of their son, and that the tension between the two would be reduced by the passage of time, their participation in parenting courses, and with the removal of the stress of litigation.

Generally speaking, if parents cannot reach a compromise about their children’s care arrangements and a Court is forced to make the decision, the decision is unlikely to satisfy everyone involved. The Court will make a decision based on a number of factors, but the primary consideration will be the best interests of the child in question. The law says that a child has a right to have a meaningful relationship with both parents, and that a child has the right to be protected from any risk of harm.

Whilst it is easy to accept that a child may be placed at risk if one parent uses drugs, it is also necessary to recognize that a child can be harmed by an over-intensive parenting regime which focuses on alienating or distancing a child from one parent because of a difference in parenting styles.

As this case illustrates, a Court cannot force a parent to cooperate with the other parent, or live drug free, a Court can only make orders about what should happen to a child in various circumstances and hope that the parents’ relationship will eventually improve to the point where they can focus on how best to look after their child.