DIVORCE DIARIES: 'My husband is threatening to take the kids if I leave him.'

Welcome to Mamamia's new column, Divorce Diaries, where Dr Gabrielle Morrissey answers questions around love, loss and relationship breakdowns. If you have an issue you'd like advice on, email us at submissions@mamamia.com.au — you can be anonymous of course.

Question:

My partner and I have been on the brink of divorce for almost a year now. We have tried counselling several times during the marriage and it's never really helped, and the few times it has, any change hasn't lasted. 

He's said several times he doesn't want a divorce. We have two kids (seven and nine) who are my entire world. While my husband has focused on his career, I've focused on mothering our two beautiful children and being at every school function, activity and sports event. 

My husband has told me that if I file for divorce, he will fight for custody of the kids. He has said he won't even stand for 50-50. He says he'll fight to win exclusive rights to all the decisions about them. Where they live, where they go to school. He says he'll even hold their passports. He's said this multiple times to me. Can he do this? Is he right? 

He says because he's the main provider, the children are best off living with him and he will convince any court that he will provide a more stable home. He says he has lawyer friends who have assured him he can do this — take the kids from me so I don't see them except for visitation. I'm terrified. I've heard horror stories about family court and children being taken from their mothers. So it makes me think he could be right. 

In our marriage, he always gets his way. If he wants something, he argues and persuades until he gets it. So if there is even a remote chance of this happening then I don't want to divorce because it's not worth losing my children. Is this an empty threat or can he really take the kids from me? 

I'm scared and want to know what I’m up against.

Answer:

I'll tell you what you're up against. A bully, that's what.

He's threatening to take from you one of the core aspects of your identity, being a mother. He's doing this by deliberately choosing to poke one of your most tender spots, your commitment and connection with the children. And he's doing this to corner you into staying rather than leaving.

This is classic bully behaviour, to intensify and escalate your greatest fear of losing your children. He's strategising against you, with the children as pawns, using manipulation, and wagering that if you are afraid, you'll do what people do when they are afraid: cower, shrink back, retreat and reverse position back to what he wants. And he's not bullying you alone, he's even trying to intimidate you further by collecting a bully gang of "lawyer friends" who, of course, according to him, back his opinion and make him sound authoritative, powerful and even more difficult to go up against. 

Watch: Melissa George on her custody battle. Post continues after video.

It's bluster. Bully-dust. Meritless and downright repulsive. Divorce rule: don't use the children as pawns. Decency rule: don't threaten to intimidate someone into a forced choice about being in a relationship. In fact, it's not only decency, it's the law. Controlling someone's behaviour through threats and intimidation will be criminalised as of July 1, 2024, and threats like these can be mounted as evidence. Did his "lawyer friends" not tell him this?

So first, recognise that the fact that he is threatening you is deeply wrong. That it's about the children is even more wrong and awful. That he's doing it so that you will stay in a marriage with him, presumably in a sexual and loving romantic relationship, after being threatened into doing so, is twisted, and has no chance of resolving into a genuinely happy, authentically respectful relationship. 

Established is that he's misbehaving and in the wrong. Is he right, as you ask, about possibly taking the kids from you?

He's wrong. More bullying behaviour is designed to play into your fear and make you back down. Now, he may believe he's right (or he may know very well he's wrong) but he is, in fact, not correct and neither are his likely fictional "lawyer friends". It's highly probable he never spoke to any lawyer buddies, especially as his goal is to have you back down from divorce and remain married. 

If he did speak with lawyers, they would not advise him to threaten you, and neither would they reinforce his claim that he would get custody as a matter of law simply because he is the financial provider. In fact, flawed as it is, we have a child support system built on the opposite premise — that provision and parenting time be decided and divided separately. 

Listen to The Split where an expert shares How do you protect the kids when you decided to separate. Post continues after audio.

To the heart of your fear: will your husband get custody? 

Let's break this down into the two main categories that are decided about children when their parents split: parenting time and parenting responsibility. He has threatened you with taking control of both; saying the children will live primarily with him and grant visitation to you (parenting time), but also saying he will be the person who will decide where they go to school, where they live, and possibly all their medical and major decisions (parental responsibility).

He's being domineering, controlling and attempting to render you powerless, which — by stating he gets his way all the time in marriage — speaks to his general one-sided approach. If he's like that in marriage, did you expect him to turn around and agree to a shared parental divorce, or anything shared? He's manoeuvring in manipulation and his seemingly trademark modus operandi of threats and bullying, power and control. 

The reason you're so gripped with fear and concern, giving his threats possible credence, is because he's using the children to make you afraid. You are not going to lose your children.

The Family Court used to hold a presumption of equal shared parenting responsibility and often defaulted to ordering 50-50 shared time unless there was a reason not to. As of last year, that presumption has been done away with. Your husband cannot claim he will get full custody/time/responsibility or even shared equal time, because that is not the law. He has no more rights to parenting responsibility or time simply because he is the breadwinner. 

The best advice you can get from this point forward is legal advice. Too many women don't seek legal counsel because they think going to a lawyer signals the end of the relationship and the start of divorce. They feel that's a betrayal or a final step they aren't willing to take. Going to a lawyer for advice is one of the most protective things you can do for yourself and for your children. Get the facts, get legal advice as it applies to your unique situation, and make a plan so you know what you are facing. The divorce process has attempts at reconciliation, mediation, shared parenting and communication built into it, so going to a lawyer is about empowering and informing yourself, not necessarily ending the marriage tomorrow.

Of course you're scared. You're up against a bully who, by your own admission, always gets his way. If you want to know what you are up against for your children, and for yourself, and gain your independence, you want to be prepared and not blindsided. Surround yourself with your allies, your support system and one hundred per cent a lawyer. Your husband hasn't hesitated to threaten you with his claims and backed himself up with his apparent "lawyer friends", so don't you hesitate to get yourself prepared and resourced.

If you can't afford a lawyer, there's legal aid, but many lawyers offer free initial consultations that will assure you of your legal rights and the process ahead of you. Please try not to be scared and please don't be bullied. He's banking on you backing down and him getting his way as he always does. But he's wrong, and you are your children's mother, an equal partner in the marriage, a woman who can find the facts out herself. So stand up to your husband for your children and for yourself — he's not right, he's not in control, and he's not going to intimidate you anymore.

Feature Image: Getty.

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