If you are going through a separation or divorce, one of the most critical issues you will have to deal with is the care and welfare of your children. Child custody arrangements can be complex and emotional, significantly impacting your relationship with your children and ex-partner.
What is child custody?
A child custody agreement is a contract between parents that dictates how their children will be raised after a separation or divorce.
- Parental responsibility is the authority to make significant decisions about the child’s long-term welfare, such as education, health, religion, and culture. There are two types of parental responsibility: joint custody (joint legal custody) and sole custody (sole legal custody).
- Living arrangements are the practical arrangements for where the child lives and how much time they spend with each parent. Living arrangements can be equal (shared custody) or unequal (primary or secondary custody).
A court order or an agreement between the parents can determine child custody arrangements. There are no strict rules about how parents should agree, but it is usually best for everyone involved if they can focus on the needs and best interests of the child.
A parenting agreement can be:
- An oral agreement that is informal and flexible but not legally enforceable.
- A written parenting plan is a signed and dated record of the agreement but is not legally enforceable.
- A formal court order, called a consent order, requires an application to the court and is legally enforceable.
Types of Custody
Various types of custody arrangements can suit different families and situations.
Some of the most common ones are:
- Sole custody: One parent has care/control of the child and the power to make all decisions regarding their long-term welfare. Depending on the circumstances, the other parent may have some contact or visitation rights.
- Joint custody: Both parents have care/custody of the child and share the making of decisions regarding their long-term welfare. They may also have equal or near-equal living arrangements, or one parent may have primary care while the other has secondary care.
- Shared custody: Both parents have care/custody of the child and share the living arrangements equally or near-equally. They may also share parental responsibility or have separate areas of decision-making.
- Split custody: Each parent has care/custody of one or more children, while the other parent has care/control of the other children. This arrangement is rare and usually not recommended, as it can disrupt the sibling relationship and cause emotional distress for the children.
When making a child custody arrangement, there are some legal considerations that parents need to be aware of.
- The Family Law Act 1975 (Cth) is Australia’s primary legislation governing family law matters. The Act sets out the principles and objectives that guide the court when making decisions about children’s matters, such as promoting their best interests, ensuring their safety, facilitating their meaningful relationship with both parents, encouraging cooperation and communication between parents, and protecting them from harm.
- The Family Court of Australia, or the Federal Circuit Court of Australia, are the courts that deal with family law matters in Australia. The courts have jurisdiction to make orders about parental responsibility, living arrangements, contact, communication, maintenance, relocation, travel, and other issues related to children’s matters. The courts can also make orders by consent if the parents agree on a parenting plan or apply for consent orders.
- The Family Law Rules 2004 (Cth) or the Federal Circuit Court Rules 2001 (Cth) are the rules that regulate the procedures and processes of the courts when dealing with family law matters. The rules cover matters such as filing applications, serving documents, attending hearings, providing evidence, complying with orders, appealing decisions, and enforcing orders.
- The Family Law (Child Abduction Convention) Regulations 1986 (Cth) implement the Hague Convention on the Civil Aspects of International Child Abduction in Australia.
- The Convention is an international treaty that aims to protect children from wrongful removal or retention across international borders by providing a mechanism for their prompt return to their country of habitual residence. The regulations set out the procedures for applying for a return or non-return order if a child has been abducted or retained overseas by a parent or another person.
Parents may need to apply to the court if they cannot agree on child custody arrangements. A court order is a legally binding decision made by a judge or a registrar that sets out the rights and obligations of the parents and the child.
- As long as a final decision is not reached or the matter still needs to be resolved, the interim order remains in effect.
- Making an interim order at any stage of the proceedings is possible, either by consent or following a hearing.
- Final orders are permanent orders that bring an end to a matter. A last order can be made by consent or after a trial.
- A consent order is a final order that reflects an agreement between the parents. A consent order can be made without going to court, but it requires an application to the court and approval by a registrar.
A child custody arrangement is not set in stone and may be modified if the parent’s or child’s circumstances or needs change. Modifying custody can be done by agreement between the parents or applying for a new court order.
If parents agree to modify custody, they can:
- Make an oral agreement that is informal and flexible but not legally enforceable.
- Make a written parenting plan, a signed and dated record of the new deal, but not legally enforceable.
- Apply for consent orders, formal court orders that reflect the latest agreement and are legally enforceable.
If parents do not agree to modify custody, they can:
- Attend family dispute resolution (FDR), which is a process that helps parents resolve their disputes without going to court. FDR is compulsory for most parents before applying for a new court order unless there are exceptions such as urgency, violence, abuse, or incapacity.
- Apply for new parenting orders, which are legally binding decisions made by the court that set out the new rights and obligations of the parents and the child. The application process is similar to applying for initial parenting orders.
Factors Considered by the Court
When deciding about child custody arrangements, whether by consent or after a trial, the court must consider various factors relevant to the child’s best interests.
- A meaningful relationship between both parents benefits the child.
- A child must be protected from physical or psychological harm, abuse, neglect, or violence in the family.
- The views expressed by the child, taking into account their age and maturity
- The nature of the relationship between the child and each parent and other significant persons
- The extent to which each parent has fulfilled their obligations and responsibilities as a parent.
- The capacity of each parent and other significant persons to provide for the child’s needs, including emotional and intellectual needs
- The attitude of each parent to the child and the responsibilities of parenthood
- Child abuse or family violence involving the child or a family member
- Any other factor that the court considers relevant
The Best Interests of the Child
The child’s best interests are paramount when deciding child custody arrangements. The child’s best interests are determined by considering various factors relevant to their welfare, such as their physical, emotional, social, educational, cultural, and spiritual needs. The child’s best interests may vary depending on age, personality, preferences, circumstances, and relationship with each parent and other significant persons. The child’s best interests may change as the child grows and develops.
Parental fitness is a factor that affects the court’s decision on child custody arrangements. Parental fitness refers to the ability and suitability of each parent to provide for the child’s needs and to promote their best interests. Parental fitness may be influenced by various aspects of each parent’s character, conduct, lifestyle, health, mental state, and relationship with the child.
Some examples of factors that may affect parental fitness are:
- Substance abuse or addiction
- Mental illness or disability
- Physical illness or disability
- Criminal history or involvement
- Domestic violence or abuse
- Neglect or abandonment
- Alienation or manipulation
- Cooperation or communication
The arrangements for child custody are complex and vital issues that affect both the parents and the children following the separation or divorce. They involve various aspects, such as parental responsibility, living arrangements, legal considerations, court orders, modifying custody, and factors the court considers.
Suppose you are facing a child custody matter. In that case, you may need professional help from a family lawyers that can assist you in understanding your rights and obligations, represent you in court, negotiate with the other parent or their lawyer, draft a parenting plan or consent orders, or assist you with any other aspect of your case.
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