Following an emotional divorce or separation, a common concern amongst parents is how to get custody of a child. If you are worried about the welfare of your children, you should do everything in your power to try and protect them from a former partner who is violent, abusive or a negative influence. Alternatively, maybe a former partner is trying to exclude you from your child’s life altogether for no justifiable reason.
The purpose of this article is to help provide you with some guidance on the processes involved in the Court system and just how to get custody of a child.
How To Get Custody Of a Child Informally
If you are asking yourself how to get custody of a child, then chances are you have already tried discussing the matter with your partner to no success.
It should, however, be noted to exhaust all options in this avenue. If you have already tried, it is recommended to give your partner some time and then try again. If this fails, you should consider reaching out to mutual friends or your former partner’s family members to try and discuss the matter on your behalf. If this does not work, your next call of action should be to try and pursue the issue in a mediation session. Mediation is a formalised negotiation, where a neutral third-party mediator who may or may not be a family lawyer can help facilitate a conducive exchange of terms amongst you both to reach a compromise.
If your former partner is dangerous, has made threats against you or even has an AVO in place against them – it is recommended that you forgo the mediation step if you are putting yourself in harm’s way. Alternatively, it would be best if you pursued the matter formally in a courtroom setting.
The Court And Equal Shared Parental Responsibility
If you and your former partner cannot resolve the parenting arrangements of your children informally through either discussions or a mediation session, the next step would be to pursue the matter formally in the Family Court of Australia.
At the starting point of your matter, the Court will consider both parents on equal footing. You can think of this as both parents are entitled to 50% parental responsibility for their children. This is what is referred to legally as ‘equal shared parental responsibility’.
However, to obtain a greater degree of parental responsibility or even sole parental responsibility – both sides will need to present evidence and argument as to why the Court should depart from the presumption of equal shared parental responsibility in favour of either parent.
What Are The Best Interests Of The Child?
The best interests of the child refers to a set of legally defined factors in which the Court will base its decision on whether to depart from the presumption equal shared parental responsibility.
The two most significant considerations, which are incredibly influential in determining how to get custody of a child, are:
1. Whether there is a need to protect the child or children from any harm. This can include family violence and abuse directed towards the child, parent or other family members. The critical consideration here is that the child is exposed to these behaviours, which will psychologically damage their especially vulnerable minds.
2. The benefit of the child having a meaningful relationship with both parents. The Court will do its utmost to ensure that the child has both parent’s as a part of their lives. However, to do this, the Court will partake in a balancing act to ensure that the benefits of this outweigh the risks outlined in the first factor mentioned.
Other Factors Considered In Determining the Best Interests Of The Child
These other factors will also influence ‘how to get custody of a child’.
1. The views of the children and their relationship with each parent. The children may have formed a stronger bond with a particular parent and thus prefer one parent or the other. This factor will be given more or less weight depending on the child’s age and level of maturity.
2. Where the child goes to school. This factor is a practical one that will depend on the distance each parent lives from the child’s school and whether they can drop them off or pick them up every day.
3. The practicality of the situation in general.
4. The time each parent spends with the children. This considers whether one parent is primarily responsible for looking after the children and the other works or is not as actively involved with the children.
Importance of Seeking Legal Advice
It is important to note that if you are contemplating how to get custody of a child, you are most likely in a position where you require help with your matter. If this is the case, you should seek out the assistance of an experienced family lawyer as soon as possible.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
Suppose you have any more questions on how to get custody of a child or any other family law matters. In that case, you should head over to our blog section for more informative articles on a wide range of family law topics.
Alternatively, here are some of our newest articles linked below:
For more informative family law content, please check out our YouTube page. Otherwise, here are some educational videos linked below based on separation and divorce, which may be of some use: