When parents ask themselves the question ‘what are the rights to see my child?’, the answer varies depending on the situation of the divorce. Statistically, mothers do have a very strong advantage in child custody cases, but while there is a rising awareness of fathers’ rights, courts nowadays focus more on shared custody to prevent further disputes.
The majority of child custody outcomes favoured mothers as they were seen as child carers and men as breadwinners of the family. Perhaps, children back then in shared custody spent time with their mothers on weekdays and their fathers on weekends.
“What are the rights to see my child?” is a question that couples ask frequently, especially being in a marriage or a de facto relationship. When children are involved in such cases, ensuring their welfare is a must as a parent. In this article, we’ll tackle who has the rights to see their own child.
Who Has More Rights To See My Child?
No one. Neither parent is treated preferentially in the court in cases involving rights to see my child. Children deserve to enjoy meaningful relationships with their parents for their personal growth. The parent’s responsibility in caring for their child can also be a big help in helping the child grow.
There are two main principles of the best interest of the child under Australian Family Law; the first one being a child having the right to benefit from a fruitful relationship with both parents and the second one being the child having the right to be protected from any form of harm in the family.
If a child has been subjected to abuse in their relationship with a parent, then the arrangement of custody with the said parent will be limited and/or supervised. Mothers’ rights to care for their children are dependent on the child’s best interests, therefore the children have the right to know and to be cared for by both parents.
Other factors may also be taken into account when talking about ‘rights to see my child’. These include:
- The child’s opinion and feelings on custody arrangements;
- The willingness of both parents in continuing the relationship between the child and the other parent;
- The parents and child’s current lifestyle;
- How well the parents can provide and if it can suffice the child’s basic needs;
- What both parents know and their opinions about parental responsibilities;
- Existing family violence orders or evidence of domestic violence in households.
Women also have the right to be protected from violence as they are more commonly found to be the victims of such domestic violence or family violence. These also include children that have the possibility to be exposed to such cases. In cases of the right to see my child, apprehended domestic violence orders (ADVO) can be included as a right for mothers.
An ADVO is an order that prevents someone from committing possible acts of harm towards the protected person like harassment, stalking, etc. These orders are not in the jurisdiction of family law but instead fall under criminal law.
Rights To See My Child As A Father
When talking about fathers’ rights, there’s a common notion and fear of the mother having full custody. This is because men have been perceived as the more violent ones in a relationship, especially in a patriarchal society. This has injected fear in general and has led to the idea that mothers are the safest option for child custody.
However, this is not the case in the eyes of the law. The child’s well-being is what is prioritised over everything else. The Family Law Amendment in 2006 moved the system away from a full custody model, where one parent was more dominant in the relationship, and implemented a more cooperative parenting stance where the child can benefit more.
Each father’s situation is different and there’s no solid answer to ensure that a father’s rights are attained. If the father is the primary earner of the household, it may be a good idea for him to be involved in the child’s life by demonstrating an active commitment to the child’s care.
A circumstance when one is in a case of seeking rights to see my child is when the mother is breastfeeding the child. The mother can be granted full custody at this time since the mother needs to look after the child while giving constant nutrition to the infant. A father can be granted a few hours to days of visits to still cultivate their relationship with their child.
Spousal Maintenance
After a divorce, a lot of women tend to find it difficult to be financially on par with their partners. It poses even more difficulty on them when their former husbands spent more time with their children because of them being well off. Spousal maintenance falls under one of the separation rights for mothers and this may affect their future earnings and their ability to be independent.
Not everyone can receive spousal maintenance after a divorce. This may depend on the party’s reasonable necessities and the other’s capacity to pay. For both partners the court may consider:
- Age and health conditions;
- Daily income and financial resources;
- Ability to work;
- The suitable standard way of living;
- If the marriage has affected the income earning capacity; and
- Who the children will live with
When a person receiving spousal maintenance starts a relationship, the court will review the spousal maintenance orders and reconsider the person to provide for themselves if it is possible.
Importance Of Seeking Legal Advice
Having rights to see my child is something that a lot of divorced parents keep in mind even before planning to separate. Basically, what one can take away from this article is that the best interests of the child are prioritised and that no parent is above the other when maintaining child custody and child support.
Each case of child custody matters is unique and should be treated with careful consideration. JB Solicitors has a wide array of family law experts who can help a parent seeking the right to see their child. We offer fixed-fee pricing for our services to let our clients know how to financially prepare from the get-go.
Contact JB Solicitors today.
