What are legal rights of parents after separation? Often, parties wonder about their rights as a mother or rights as a father following a divorce or separation. A divorce or separation can be an emotionally challenging period in anyone’s life. Adding to this stress, there are many other steps that parties need to take to finalise their divorce.
In other words, going through a divorce or separation can cause a great deal of personal distress to someone. On top of that, a person has to go through numerous legal and procedural struggles to finalise their divorce or separation.
Moreover, one of the pressing concerns for parties is in relation to their parental rights. In cases where there are children involved, the procedures to undertake following a separation usually takes longer.
This is because both the mother and child’s father would wish to have continued access to their child/ren. In this article, we discuss certain legal rights of parents after separation.
What Are Legal Rights of Parents After Separation?
Firstly, it is important to know that the Family Law Act states that there is a presumption of equal parental responsibility or equal shared parental responsibility that is applicable in any family law matter. Section 61DA states that the courts always apply this presumption before making any court orders.
This presumption is important because the family courts consider it to be in the best interests of the child if he/she has a meaningful relationship with both his/her parents. There are various other primary and secondary considerations under the best interests principle stated in Section 60CC of the Family Law Act (1975). It also includes the need to protect the child from physical or psychological harm.
Therefore, while there are substantial legal right rights of parents after separation, in Australian family law, the family court gives the child’s rights and interests more priority. To a large extent, the legal rights of parents after separation depends on what is in the best interests of the child or children.
The family court may also appoint an Independent Children’s Lawyer (ICL) who can asses the child’s interests. But importantly, parents have the right to spend equal time with the child. Moreover, they have the right to visit their child and prepare parenting plans and consent orders, or apply for parenting orders that can enable them to visit their child.
Let’s look at how parenting arrangements or plans, consent orders and parenting orders play a role for parties to understand the legal rights of parents after separation.
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Parenting Plans, Consent Orders, Parenting Orders
After a divorce or separation from de facto relationship, parents need to come up with custody arrangements so they can both enjoy their rights. Child custody arrangements help both parents to keep in touch with the child and always stay connected with the child.
Moreover, more often than not, after a separation one parent is the primary carer of the child, i.e. whom the child lives with. This is why custody and visitation arrangements become especially important for the non-custodial parent.
There are various approaches that parties can take to formulate these visitation and custody agreements so that they can both enjoy their legal rights of parents after separation.
- Parenting Plans: These are informal agreements that the two parties can make. They can choose to make a written plan or verbal plan.
- Consent Orders: Parties can opt to convert their parenting plans into court-ordered consent orders. It makes their arrangement more legally binding, and if a party breaches the plan, courts can penalise them.
- Parenting Orders: If parties cannot make mutual agreements, they will need to make applications to the court. The court will then consider the circumstances of the case, and the best interests of the child and make parenting orders accordingly.
It is important to note that parties cannot directly approach the court if they cannot make their own arrangements. The law requires them to first attend family dispute resolution or mediation sessions to resolve their differences.
Can Courts Deny Legal Rights of Parents After Separation?
As we have explored above, the best interests of the child principe is the most paramount consideration for any legal case in family law. If there are instances of family violence or domestic violence, the court may deny the legal rights of a party.
If the courts find that a parent has exposed the child to harm, abuse (physical, sexual or psychological), or neglect, it can give sole parental responsibility to the other parent. But, because the court also values the benefit to the child of having a relationship with both parents, it will make reasonable orders.
For example, the court may order a parent to attend some form of counselling. Moreover, until it is satisfied that the parent in question does not present any threat. it will order that the parent visit the child only in supervised environments.
Courts will make “no-contact” orders very rarely as it considers it important for the child’s welfare and personal development to be able to enjoy a relationship with both parents. Therefore, if one parent has sole parental responsibly, it does not necessarily mean that the other parent cannot visit or spend time with the child.
Sole parental responsibility gives one parent the authority to make all major decisions in the child’s life without consulting the other parent. Can a parent deny the other parent from visiting child? No, each parent has to comply with the rules and orders the court.
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Why Seek Advice From Family Lawyers?
Parties need to sort out both parenting and financial matters after a separation or divorce. Both these matters are equally challenging. Family lawyers are experts in handling such matters. Therefore, obtaining advice from qualified professionals can help you sort these matters out without any stress.
At JB Solicitors, our team of family law solicitors have experience dealing with a wide variety of matters. They are well-aware of the laws that are applicable to your particular matter. They can provide advice that is tailored to your needs. Our team also offers fixed-fee pricing for family law matters.
If you wish to gain more information on other family law matters such as child support, parenting plan, primary custody, child’s best interests, mother’s rights or sole custody click here to read our other blogs. For other enquiries, contact our team of lawyers today.