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.
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:
- Children to live in safe and healthy environment
- Children to have a relationship with both parents and their extended families
- Responsibility for the children to be shared between both parents
However, due to a range of factors that are considered in each unique case, a different outcome may be reached.
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, child custody matters can be 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. 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. 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.
Types of Child Custody
The most common outcome in a child custody matters is that 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
Custody of a child is also more than just who the child lives with. Parental responsibilities also include spending time with the child and having input into decisions that affect the child, such as where they go to school, travelling overseas, and medical decisions.
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.
Child Custody Agreements
A custody agreement for children can exist in many different forms.
Parents can have a verbal agreement between themselves as to how the parental responsibilities are handled. Although this can be fine for short periods of time, for example at the beginning of an amicable separation, 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 is 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 by the Court issuing 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 We 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, which 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.
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.