If you are recently divorced or separated with children, you may be wondering about your child custody rights and entitlements.
Under Australian family law, children have a right to have a meaningful relationship with both of their parents. Accordingly, both parents have equal child custody rights unless there is evidence to the contrary.
The following article will discuss child custody rights and what you need to know if your parenting arrangement dispute proceeds to Court.
Do You Have To Go To Court For Child Custody Rights?
Before discussing child custody rights in Australia, it is essential to note that we do not use the term ‘child custody’ in Australia. This is a term utilised in the USA that you may be familiar with due to the influence of American television.
In Australia, we use the phrase ‘parental responsibility’. This article will use these terms interchangeably.
Contrary to what many may believe, you do not have to go to Court to determine your child custody rights. Understandably, it can be pretty difficult sometimes, given the stress and emotions involved in a divorce or separation, to resolve things amicably among yourself informally. However, it is always recommended to do so because if your matter was to proceed to Court, the outcome is uncertain and can result in unfavourable arrangements.
If you cannot compromise, it is recommended that you try a mediation session before proceeding to Court.
How Are Child Custody Rights Determined In Court
You may be wondering, if you were to proceed to Court – how exactly will your child custody rights be determined?
The legal starting point of the Court determining parenting matters is known in the Family Law Act as equal shared parental responsibility.
Equal shared parental responsibility means when the Court determines which parent a child will spend time with, live with, and the parent who makes significant decisions about the child. Both of the parents will be considered equals, as this is presumed to be in the child’s best interests.
Multiple variables will influence whether the Court will choose to depart from this presumption that equal shared parental responsibility applies, legally known as the child’s best interests.
Factors The Court Considers In Determining Child Custody Rights
Following Section 60CC of the Family Law Act, the Court will consider the following factors in determining your child custody rights and arrangements:
1. The benefit of the child having a meaningful relationship with both of their parents; and
2. If there is a need to protect the child from physical or psychological harm, family violence, neglect or abuse.
The two factors above are the most prominent considerations and will be contemplated by the Courts in unison.
Here is a list of other factors that are considered. Depending on the circumstances of your case, the following will be given more or less weight:
- The opinions of the child;
- The relationship the child has with both parents;
- Any special needs of the child and the ability of each parent to satisfy those needs;
- Where the child goes to school and the practicality of where each parent lives;
- The level of participation each parent has had with their child in the past;
- The attitude of each parent towards their role and parenting;
- If there is family violence involved or a family violence order in place;
- The ability of both parents to facilitate an ongoing relationship with one another for the sake of their child or children; and
- The child’s characteristics including their level of maturity, lifestyle, background.
What Is An Independent Children’s Lawyer (ICL)?
Since your child is a minor, family laws in Australia outline that children cannot legally represent their interests in Court.
Accordingly, an independent children’s lawyer is appointed to represent what they objectively believe is in the child’s best interests.
The role of an ICL involves:
- Assuming an agent role between the parents and the children;
- Facilitating discussion and negotiation between the parents and children;
- Preparing and organising evidence for the Court; and
- Facilitating the involvement of the children in the proceedings as far as is appropriate.
Importance of Seeking Legal Advice
When discussing child custody rights in Australia, it is essential to note that every situation is different. Accordingly, how your dispute will be determined will largely depend on the particular circumstances of your case.
To better understand the prospects of your matter, please do not hesitate to reach out to our experienced family lawyers today.
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.
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