In divorce or separation cases involving children, naturally, the first concern that most parents will have is regarding custody of kids. This is one of the most significant stressors which adds to the complexities of the breakdown of a relationship.
Custody of kids relates to the guardianship, and is the legal term used to refer to the relationship that one or both parties will have with the child. In Australia, importantly, the term ‘custody’ is no longer used. Since 2006 when amendments to the Family Law Act (1975) were made, there is a greater preference for terms like who the child “lives with” or “spends time with”, rather than “custody.”
Additionally, when discussing custody of kids in Australia, the concept of parental responsibility is very important. According to Section 61B of the Family Law Act (1975), parental responsibility can be defined as follows:
Parental responsibility, in relation to the child, means all duties, powers, responsibilities and authority which by law, parents have in relation to the children.
Importantly, when discussing custody of kids in Australia, there are two things that will be broadly considered under Australian legislation. These are:
- Parenting responsibility; and
- Who the child spends time with; or who the child lives with
Parenting Responsibility
By analysing the definition of parental responsibility given above, you may realise that parental responsibility essentially means the duty of parents to protect their children. There are various commitments that are included in this regard. These are:
- provide the child/children with food, a place to live, and clothing;
- safeguard the children from all types of harm including abuse, neglect, or family violence;
- offer supervision, safety and control;
- provide financial support to the children – for instance, looking after educational and medical needs;
- provide appropriate medical care and attention to the child/children whenever required
Parental responsibility also includes making short-term and long-term decisions in the child’s life. Short-term decisions include:
- What the child is to eat for breakfast, lunch or dinner;
- What they should wear;
- How much time should be allotted for entertainment purposes like watching television
Long-term decisions include:
- Deciding the religion for the child;
- Selecting which school the child should study in;
- Making decisions about moving overseas;
- Naming the child/ren
According to Section 61DA of the Family Law Act (1975), there is a presumption of equal shared responsibility applied by the courts before any orders are made.
The presumption of equal shared responsibility means that the court presumes that is in the best interests of the child for the child’s parents to have equal shared responsibility for the child.
Equal Shared Responsibility Versus Custody Of Kids
If both parents have equal shared parental responsibility, both parties will have equal rights and authority to make all decisions in the child’s life. Both parties are required to consult each other before they make any decision concerning the child.
Importantly, this must not be confused with custody of kids. It is possible that a child lives with one parent indefinitely (that parent is said to have custody), but even in this case the parent who the child is not living with will have the right to make decisions for the child.
Sole Parental Responsibility
Unlike equal shared parental responsibility, sole parental responsibility means that only one parent will have responsibility to make all long-term decisions of the child. When a parent has sole parental responsibility, they do not need to consult the other parent while making any decisions for the child.
Notably, sole parental responsibility does not imply sole custody. When a parent has sole parental responsibility, the other parent can still visit the child and spend time with the child.
Orders for sole custody are granted only when the court is satisfied that having any contact with the other parent will be very detrimental to the safety and well-being of the child. Sole custody of kids is granted in cases where violence or abuse is involved.
Otherwise, according to the best interest of the child as laid out under section 60CC of the Family Law Act (1975), the court considers it important for the child to have a meaningful relationship with both his/her parents.
Custody Of Kids
In getting custody of kids, there are various approaches that can be taken. These include in the form of parenting plans, consent orders, or parenting orders.
Details of visitation rights and custody of kids can be laid out by both parents in an informal written agreement which is called a parenting plan. Parenting plans can be drafted with the help of experienced solicitors so as to make sure that each parents interests are well-accommodated.
Since parenting plans are not legally binding, it is not uncommon for disputes to arise in the future. For these reasons, people opt to apply for consent orders at courts. Consent orders formalise the existing parenting plans and make them legally binding.
Lastly, in situations where both parties cannot come to an agreement around custody of kids, they can approach the court. By analysing the details of the case, the circumstances of each parent, and giving paramount consideration to the best interests of the child/ren in question, the court will then make parenting orders.
Parenting orders are also legally binding and breach of parenting orders may attract penalties.
Importance Of Seeking Legal Advice
Because matters around custody of kids are complicated, seeking legal guidance is necessary to avoid custody disputes. These disputes only add to the burden of the divorce/separation. Most importantly, these matters will affect the psychological health of the child and can cause anxiety.
When seeking legal advice, you can rest assured that family lawyers will deal with your case efficiently. At JB Solicitors, our friendly and expert family lawyers have a wealth of experience in dealing with complicated divorce and custody matters.
With years of experience, our lawyers have developed their skills in understanding each case thoroughly and tackling them by providing tailored advice to our clients. We offer fixed-fee pricing for family law services which gives our clients a clear sense of the costs from the start.
Contact our team of family law solicitors today.
