The question of what the best interests of the child are comes up quite often in family law. This is because the phrase is applicable in many scenarios involving your children. The article’s purpose is to summarise what the best interests of the child encapsulates and discuss some common areas where the consideration arises.
What Factors Does The Court Consider In Determining The Best Interests Of The Child?
The primary considerations are:
- The need to protect the child from any harm, including physical abuse, psychological abuse and family violence
- The benefit of the child having a meaningful relationship with both of their parents
Additional considerations include:
- The views of the child, relative to their level of maturity and understanding
- The relationship of the child with each parent and other relatives
- How willing each parent is to have an ongoing relationship with the child
- The likely effect that a change in circumstances will have on the child – such as a change of location, separation from a parent or relative and so on
- The child’s characteristics, in general, maybe relevant depending on the circumstances of the case, such as but not limited to their level of maturity, lifestyle, gender and background.
The following headings will cover the typical family law situations where the phrase ‘the best interests of the child’ will eventuate.
In determining the parenting arrangements of the children, the court will primarily consider the best interests of the child. The court’s starting point will be the presumption that equal shared parental responsibility will be in the best interests of the child. However, this can be rebutted with evidence to the contrary.
Parenting arrangements encapsulate who the child will primarily live with and the days and times the child will spend with each parent.
Relocation Of a Child
Sometimes the parent who has sole parental responsibility of the child may wish to relocate to a faraway destination within the country or even overseas. Such a situation will severely inhibit the relationship of the child with their other parent.
The court will consider the best interests of the child in granting an application for relocation. The considerations include:
- If the other parent spends no time or minimal time with the children
- Whether the parent seeking to move has family support where they are proposing to relocate
- Whether the parent seeking to move has any family support where they are presently residing
- Whether the parenting seeking to move has any financial difficulties where they currently live, and the relocation will provide them with more financial support or employment opportunities
Child Recovery Orders
Child recovery orders are court orders which compel a person to return a child. They are often utilised in instances where one parent takes or snatches their child without the permission of the parent who has custody or parental responsibility of the child.
The court will only approve an application for child recovery orders if it is in the best interests of the child to do so, such as the danger of the child being exposed to any form of harm.
Independent Children’s Lawyers
The role of an independent children’s lawyer is based on representing the child’s best interests, focusing on decisions about parenting arrangements.
As such, an independent children’s lawyer should not pick sides between you and your former spouse but rather act in an unbiased capacity for what they objectively believe is in the best interests of the child.
Denying Access To Your Child
In general, a parent may not deny the other parent access to their child. A parent may, however, deny access to their child if it is in the best interests of the child to do so.
Such circumstances include:
- To protect the child from any violence
- The parent has mental health problems that are extreme, and exposing them to your child is physically or psychologically dangerous.
- Where the parent abuses alcohol or drugs, and as such, may be intoxicated around the children
In such a situation, it may be still considered in the best interests of the child to continue to have contact with the other parent because of the other consideration of the child having a meaningful relationship with both parents. In such circumstances, the solution may be for the parent to see the child under the supervision of a trustworthy relative or professional.
Importance of Seeking Legal Advice
When discussing the best interests of the child, it is essential to remember that the phrase can be applied to any number of family law scenarios.
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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