If you have just separated or are likely to, it is important you get proper legal advice about custody of the children.
There are many myths regarding people wanting full custody.
THE LEGAL PROCESS
One size does not fit all. There are no standard or set arrangements for the care of a child following separation.
The Family Law Act sets out what matters should be considered and these will help you to make arrangements for your child.
The Act makes it clear that parents have responsibilities not rights. The child has rights.
The Act focuses on each parent’s responsibility to their child and the Court will, in every circumstance prioritise the child’s best interests over the interests of parents.
Parental responsibility and the time the child will spend with each parent are the two key issues parents must, and if not then the Court will, consider following separation.
The modern term for ‘custody’ is now “who will the child live with”and the term ‘access’ is has been replaced with‘spend time with’.
Put simply the parent the child lives with has custody and the parent who has access to the child is the parent the child spends time with.
It is rare that a Court will accept that is in the best interest of the child that the child live exclusively with one or other parent or that one parent will have total responsibility for the child.
The law presumes that both parents share decision making, and have ‘equal shared parental responsibility’. This means long-term issues in a child’s life such as education, religious upbringing, medical treatment or a change to where a child lives, even changes to the child’s name.
If there is a risk to the child of family violence then the Court will unlikely make an order that both parents have equal shared parental responsibility.
A parent’s automatic right to equal time with a child is a myth because it is not the parent’s rights of paramount consideration. Time in whatever measure with either or both parents is a right of the child.
It should be understood that equal shared parental responsibility does not mean that the child must be with each parent 50% of the time (i.e. equal time)
Access time between a parent and a child can be worked out between the parents and sometimes mediation can result in a parenting plan or a consent order.
If the parents can’t come to an agreement then the Court may need to make decisions about access.
As a parent you may not like the decision the Court eventually makes so it is better to come to an agreement with the other parent.
The Court will consider the time arrangement that suits the best interests of the child and the Court will look at a range of factors, including
- If there is any evidence of family violence
- The maturity of the child and the child’s wishes
- The kind of relationship the child has with each parent
- Each parent’s involvement with the child
- The practical difficulties of the child spending time with one or other parent
- Cultural issues
No one should be under any illusion that if the Court is to decide about access or custody then the Court will most definitely take into account the behaviour of parents towards the child and towards each other when making the decision about what is best forthe child when making parenting (ie“access” and “custody”) orders.
Each parent must behave because inappropriate or bad parent behaviour will result in restrictions on the amount of contact/access time they will have with the child.