A child custody agreement is essentially a parenting agreement laid out between parents, following divorce or separation, which details how each parent will have access to their child/children.
In Australia, a child custody agreement is often referred to as a parenting agreement. A Child Custody Agreement is always preferred over approaching the Court in making decisions around custody of a child.
A child custody agreement can be in various forms. These include: –
- An oral agreement
- A written agreement
- An agreement which is made into a formal court order – called Consent Order. For consent orders, an application must be submitted to the Court.
There are certain important factors that the parents need to consider while making a child custody agreement or a parenting agreement. These are: –
- The age of the child
- Which parent is best placed, and equipped to provide the child’s day-to-day care
- The child’s educational needs
- Any special needs of the child including medical needs
- The child’s cultural needs (especially important where the child is Aboriginal or Torres Strait islander)
- The child’s own views and opinions
- Any practical considerations like transport, accommodation and daily expenses, and
- The safety and well-being of the child
Generally, a child custody agreement is updated as and when a child grows, based on the child’s needs.
Parenting Plans As A Form Of Child Custody Agreement
A written plan that is dated and signed by both the parents is called a Parenting Plan. It is important to note that a parenting plan is not legally enforceable.
Parents are not required to follow some specific format to make a parenting plan. Parenting plans set rules for things including: –
- How much time the child will spend with each parent, and extended family including grandparents
- Where the child will be living
- How decisions on the child’s education and schooling will be made by each parent
- What will parents do for special days like holidays and birthday
- How the parents will contact each other, or others in the family, whether by phone or email
- How will the plan be modified, and how parents will deal with any disagreements about the plan
- How will parents deal with any other issue that surfaces which concerns the child, for instance how is the child to be raised
Consent Orders
If two partners are able to agree on a fixed parenting plan, it is advisable that they apply to the Family Court for consent orders. This formalises the child custody agreement that the parents have laid out.
While a parenting plan is not legally enforceable, if the parents apply for a Consent Order, this will be legally enforceable.
Parenting Orders Or Court Orders
In some situations, parents are not able to reach any satisfactory child custody agreement. In such instances, they seek the help of Family Courts.
When parents are not able to agree and find a common ground, they need to apply for a Parenting Order at the Court. This means that a parent is seeking orders from the Court to gain parental responsibility.
However, before approaching the Court, it is necessary that the parents first try all other methods to resolve their differences over child custody. Parents will also need to show the Court the Family Dispute Resolution certificate, as evidence that all other avenues have been tried before approaching the Court.
In making a Parenting Order, according to the Family Law Act 1975, the Court makes decisions on the basis of the best interests of the child. The best interests of the child is the paramount consideration in making a child custody agreement.
In taking into consideration the best interests of the child, there are many factors that the court considers. This can include: –
- Both parents have meaningful involvement with the child such that the child enjoys a healthy relationship with both
- The child is protected from all sorts of harm, be it physical or psychological abuse, neglect, or family violence
- All factors considering the safety, well-being, development and protection of the child
The Australian Government has published a handbook with information on how to develop parenting orders.
Shared Child Custody Agreement
In some cases, the Court may order that the parents have shared parental responsibility. There are different orders that the Court can make in this regard: –
- Alternate Weekends
Where one parent will have the child every alternate weekend.
- Alternate Weeks
Where each parent lives with the child for an entire week on an alternate basis. In this arrangement, unlike alternate weekends, children enjoy roughly equal amount of time with each parent.
- Alternate Weeks with Visits per week
Where the child lives with each parent on an alternate basis, and where the non-custodial parent can come visit the child during the week.
For example, if the child is living with his/her mother in a given week, the father can come visit the child on any given day, and vice versa.
- Alternate Days in the Week
In some cases, the child lives with a parent for first two days of the week, and the other parent with the next two days, and so on.
For this to work efficiently, the parents cannot be living too far off from each other.
- School Holidays
If one parent lives far off, and the child lives with the other parent during school terms, then the child will live with the parent who lives far away during all school holidays and breaks.
Legal Advice For Custody Matters
This is a stressful period for you, and you want to reach a satisfactory child custody agreement with your former partner.
In cases where you are able to formulate a Parenting Plan, it is advisable that you seek legal assistance in turning the plan into a Consent Order, with the help of the Court.
In cases where you are unable to reach an agreement, seek the expert mediation services offered by JB Solicitors.
Our mediators will help you solve all family disputes so you are able to reach agreements that will benefit you, your former partner, and your child.
Our compassionate Family Lawyers are always here to help you. Contact JB Solicitors today to get your child custody agreements finalised.
