Child custody matters are not just a strain on parents. When a marriage or relationship breaks down, it is a confusing and stressful time for children. Different kids will react in different ways depending on their age, personality, and how their parents interact with them and each other.
Separations and divorces can get messy, especially when there are kids involved. Hence the importance of child custody mediation. When children are in the picture, parents need to think about how this might impact their upbringing, both during the fraught and painful separation period and in the future. At Family Law Group Solicitors, we work with you to find a mutually agreeable child custody arrangement, often through a mediation process.
When coming to an arrangement for child custody the main concern is the welfare and well-being of the children. An ideal outcome is for:
However, due to a range of factors considered in each unique case, an ideal outcome is not always possible.
Child custody matters fall under the Commonwealth Family Law Act. The same laws for custody of children apply to all of Australia. There are not separate child custody laws in each state. However, family law child custody matters in Queensland are dealt with in various Courts.
Who has the right to custody of a child?
In Australian law the term “custody” is not used. However, most people use the word “custody” in day to day conversation.
The Family Law Act refers to child custody arrangements as:
- Live with – who the child resides with. This is usually what people mean when they talk about “custody”.
- Spend time with – who the child spends time with separate to who they reside with. This is usually what people mean when they refer to “access” or “visitation”.
Child custody is a matter of parental responsibility, not parental rights. The law with respect to child custody is concerned with the best interests of the child, not protecting the rights of the parents or other parties involved in the matter. Seeking custody of a child is not a case of exercising your rights. Instead, it is a matter of demonstrating that you are a person who can take on some or all the parental responsibilities for the child.
Families come in all shapes and sizes. This means that parents can be married, de-facto, same sex, adoptive, and so on. Children can live in a family with their biological parents, or a blended family with step-parents and step-siblings, and a wide range of other situations as well. Therefore, a person who is not one of the biological parents of the child can apply for child custody, whether that be as a “live with” or a “spend time with” arrangement.
The Benefits of Using Child Custody Solicitors
Working through mediation with a team of child custody solicitors isn’t guaranteed to avoid a more protracted court battle. However, going through mediation for child access has other benefits, including:
Preserving parental relationships
In a divorce or separation matter where children aren’t in the picture, things are typically simpler. In many cases, the ex-partners can split up, divide their assets, and move forward in life without needing to have much, if any, interaction with one another.
When children are in the picture, though, it is important to preserve a cordial and respectful relationship between the two parents. Even after a separation or divorce, these ex-spouses will often need to interact regularly as part of a co-parenting arrangement.
Sadly, contentious separations can render these types of ongoing relationships untenable. Hence the value in negotiating through your child custody attorney. And, if seeking a parenting order from the Court, using the services of a qualified mediator.
Reducing the impact on the child
Divorce can have a considerable effect on a child and his or her emotional development. Drawing kids into contentious court battles only worsens this impact.
Arriving at a child custody agreement through mediation is a gentler and quieter way to go about things, which can shield the child from much of the fallout from a divorce or separation.
Controlling the costs
Separation proceedings can be quite costly. By avoiding some of the back-and-forth between solicitors, and staying out of court, mediation can help shorten the process and minimise the cost.
Types of Child Custody
The most common outcome in a child custody matters is the biological parents come to an arrangement, either by agreement or by Court order. However, there is no single arrangement that applies to all child custody matters.
The Court considers a range of factors when determining an appropriate custody arrangement for children, including:
- The age of the child
- The nature of the child’s current relationship with each parent
- Financial and lifestyle circumstances of the parents
- Any physical or mental health issues
- Any history of violence or drug abuse
- The wishes of the child themselves
A child custody arrangement could be any one of:
- Full custody – a single parent has sole custody of the children.
- Shared custody – two parents have shared responsibility for the child. This can include living arrangements that range from the child primarily living with a single parent (common for babies and very young children), all the way to equal time living arrangements (more common with older children such as teenagers).
- Temporary custody – in urgent matters one parent, or another concerned person such as a grandparent, can apply for an interim order granting them temporary parental responsibility while the matter of long-term child custody is resolved.
Problems Mediation for Child Access Helps Address
Child custody mediation will involve discussions about numerous aspects of child custody and parenting arrangements. These include:
- Parenting time and/or visitation. Are the parents going to share custody of their child/children? How will this be determined and what are the options in these circumstances? How will parenting time be split or spent? Answering these difficult questions is one of the core purposes of child custody mediation.
- Child support. Will child support payments be a part of the child custody arrangement? While the priority of most parents is to figure out a plan for custody and parenting time, the financial side of the equation is vital to consider as well. We help you look at these matters objectively and aim to get a written agreement.
- Holiday plans. Whether custody is shared or not, parents often want to know precisely which holidays they will get to spend with their kids. Here, it is not only essential to consider each parent’s wishes, but also their work schedules, the child’s school calendar, logistical factors (such as travel time or distance) and more.
- Special occasions. Parents also want certainty about how special events such as birthdays, weddings, or Christmas Day are going to be handled. It’s important to have a plan in place to avoid last minute surprises.
There is no one-size-fits-all plan for child custody or co-parenting. The best plans will prioritise the needs of the child/children while also respecting the wishes of both parents. As leading child custody lawyers in Brisbane, we can help you consider all these factors and more, with hopes of arriving at the best solution for all involved parties.
Child Custody Agreements
A custody agreement for children can exist in many different forms.
Parents can have a verbal agreement between themselves for how the parental responsibilities are handled. This can be fine for short periods of time, for example at the beginning of an amicable separation. However, we recommend that a formal parenting plan be created for the long term.
A parenting plan is simply a written agreement between the parents. Parenting plans are not legally enforceable. In other words, if the other parent breaks the agreement, there are no direct consequences such as criminal charges or fines. However, if you do go before the Court to resolve your child custody matters, the parenting plan will be taken into consideration by the Court.
A parenting plan can be formalised as a legally binding agreement. To do this, the Court issues a consent order or parenting order. This can be as simple as the Court agreeing that the parenting plan is suitable, or the Court may issue its own orders after a trial or hearing.
How Family Law Group Solicitors Can Help You
If you are thinking about the future of your children’s custody, it is best to seek legal advice. Our team of family law solicitors will help you work through the factors the Court will consider in the decision-making process. These factors include having both parents involved in their lives, protecting the children from harm, and having adequate parenting to help them achieve their full potential.
You can speed up the child custody decision by working with your former partner and lawyers to make sure your children’s best interests are at heart.
Family Law Group Solicitors has been operating since 2005, led by Hayley Cunningham. Hayley is an Accredited Specialist in Family Law, as well as a registered Family Dispute Resolution Practitioner and an experienced mediator.
Call our office today on (07) 5499 2900 and one of our friendly staff can book you in for an initial consultation with a solicitor.
Or, you can send us a confidential enquiry by email using our contact page.