If you are going through a divorce or separation, The topic of child custody arrangements will likely arise between you and your former partner.
This article aims to provide a practical guide on all the most commonly asked questions relating to child custody arrangements.
Do We Have To Go To Court For Child Custody Arrangements?
In Australia, we do not use the term ‘custody’. The equivalent of custody here is referred to as ‘Parental Responsibility’. Please be aware that this article will interchangeably use both of these terms.
Contrary to popular belief, there is no requirement to go to court to make child custody arrangements. Although it is pretty hard sometimes, given the stress and emotional circumstances involved in a divorce or separation, couples may choose to informally resolve the matter amongst themselves and decide on parenting arrangements for their children. This can include arrangements such as:
- Who will spend time with each child and when;
- How to raise their children;
- Who the children will live with and;
- How to decide upon significant decisions concerning the children.
Such informal arrangements are typically made through either the parents themselves or in a mediation session.
Are Informal Child Custody Arrangements Worth It?
Informal child custody arrangements such as those mentioned above can be highly beneficial in terms of monetary savings in legal costs, encapsulating court, lawyer and application fees. Sometimes, they also last forever without any issues whatsoever.
However, a common issue with informal child custody arrangements is that in most instances, parents are understandably far too emotional following a divorce or separation to devise suitable arrangements that meet their children’s best needs. Accordingly, whether they know it or not – their thought process may be centred on their own needs or even hurting their former partner rather than doing what is suitable for their children.
Another issue with informal child custody arrangements is that there is typically nothing to keep each parent accountable. This means whenever a disagreement arises amongst former partners, the parent who has custody of the children can essentially dictate the terms of the arrangement.
Equal Shared Parental Responsibility
Assuming you and your former partner are unable to come to a mutually agreeable decision regarding the care of your children either informally or through mediation, then you will likely need to proceed to court.
In determining parenting and child custody arrangements, the court will initially apply the presumption of equal shared parental responsibility. This means that the court assumes that it is in the child’s best interests to have a meaningful relationship with both parents, and both parents should play an equal role in caring for the child and making significant long-term decisions regarding their upbringing. This is reflected in s61DA of the Family Law Act.
Factors That Shift The Balance Of Equal Shared Parental Responsibility
Several factors help in rebutting this presumption of equal shared parental responsibility. These factors are legally referred to as the ‘best interests of the child, and include:
- Whether one parent exhibits family violence, and the need to protect any children from being exposed to violence, physical harm and psychological harm;
- The benefit of the child having a meaningful relationship with both parents;
- Any impact the child custody arrangements will have on the wellbeing of the children;
- The time each parent spends with the child, and the bond formed between the child and each parent;
- Where the child goes to school and the practically in taking the child to and from school;
- The views and opinions of the children and;
- The practicality of each parent sharing parental responsibility – e.g. the distance between them, the parent’s willingness to facilitate a relationship amongst their children and the other parent and so forth.
This list is by no means comprehensive, and the court may consider any additional factors that may be relevant in determining the child’s best interests.
Sole Parental Responsibility
If one parent seeks sole parental responsibility for the children and the other parent objects, the matter will typically proceed to court. Before going to court, however, the court will require that you first attempt to resolve the issue in mediation before proceeding. The only exception to this is usually when the other parent has been violent or exhibiting dangerous behaviour.
Sole parental responsibility is typically granted in more extreme situations where the court needs to protect the child from exposure to the other parent. The consideration of the child having a meaningful relationship with that parent is insubstantial when balanced with this.
Importance of Seeking Legal Advice
It is important to note that if you are unhappy with the present child custody arrangements between you and your former partner, and they are unwilling to compromise, it may be time to seek legal help. If this sounds like you, you should reach out to an experienced family lawyer to discuss your particular circumstances and uncover the options available to you.
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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