Contrary to some beliefs, family law as it pertains to parental rights is independent from matters of divorce. In fact, custody laws relate to any situation where there is disagreement over who should hold parental responsibility and where a child should live. In this blog post, we will discuss the basics of child custody, parental rights, parenting orders, and how the court arrives at a decision. Read on for everything you need to know, including how to prepare for an upcoming court case.
How Is Child Custody Determined in Australia?
Child custody, also known as parenting orders, has many moving parts. This means that, unfortunately, there is often no straightforward determinant to any custody case. However, there are a few key variables in play, and they are as follows:
This relates to all responsibilities and authority that a parent holds towards their child. In most cases, both parents share equal parental responsibility for their child under 18 years of age, regardless of their status as a couple. In family law, a court can remove parental responsibility if it is in the child’s best interests. The court can also assign (or reassign) parental responsibility to an appropriate legal guardian.
Parenting time is more flexible than parental responsibility. In fact, the conditions of most split custody arrangements dictate that the child will spend more time with one parent than with the other. In most cases, this is largely due to logistical reasons, the largest being ease of travel to school; but emotional or intellectual factors can also play a part. Please note that parenting time is a separate matter to parental responsibility.
Best Interests of the Child
The best interests of the child trump all other variables. The court will prioritise the child’s right to a meaningful relationship with both parents, except in cases of family violence or if one parent is unfit to fulfil their parental responsibilities.
Financial Responsibility for Children
So long as you have some level of parental responsibility for your child, you are financially responsible for them. If you can’t come to an arrangement with your child’s other parent, the court can settle things via a child support assessment or program.
Your Child’s Wellbeing
If your child’s best interests are the guiding force behind all decisions, your child’s wellbeing should inform how you arrive at them. Parenting orders signal a major life change for a child, which can be particularly disruptive in the formative years. As a parent, your job is to navigate the situation with a child-first approach. Don’t speak ill of their other parent, don’t pressure them into any decisions, and leave them out of all court proceedings unless their input is necessary.
What Type of Custody Is Best for a Child?
The best type of custody arrangement is one that’s within a child’s best interests. This is a loaded term, but it’s unfortunately the closest catch-all answer we can provide. What’s best for one child won’t be best for another due to varying circumstances. The court arrives at all decisions on a case-by-case basis.
Traditional wisdom suggests that equal time with both parents is the best arrangement. However, common sense dictates that a child will likely live with one parent most of the time. When you consider that the child likely attends school in a specific location, has after-school commitments, and/or has most of their possessions at a specific house, living with a primary parent may make more sense from a logistical perspective. Moreover, children crave structure, and it’s best to provide them with a base location rather than something of a double life.
Of course, the best type of custody arrangement is one where a child is safe. If a parent has displayed family violence or proved themself unfit to fulfil parental responsibilities, you may wish to seek a sole parenting order.
At What Age Does a Child Have a Say in Custody in Australia?
There is no set age at which children have a say in the final decision. However, the court (which can include independent children’s lawyers) will take a child’s age and maturity (both intellectual and emotional) into account. If an independent children’s lawyer has heard the child’s viewpoint and preferences, they must communicate these to the court. In simplistic terms, the older the child, the more influence they will hold over the outcome. For example, a 13-year-old’s preference will likely have a greater influence than that of their 9-year-old sibling’s.
What Is the Most Common Custody Arrangement?
In the case of a child’s or children’s parents living independently from one another, the most common arrangement is shared custody where one parent has more significant parenting time. This means that the child will have a primary residence but live with their other parent 2 to 5 nights per fortnight.
Please note that every situation is unique and that this arrangement won’t work for everyone. In the case of parents living interstate, for example, shared custody may be limited to school holidays or not feasible at all.
Can Child Custody Be Changed?
The short answer is yes, but it will require another court case. Although you can discuss an alternative arrangement with your child’s other parent, please note the parenting order will not change without legal intervention. If you wish to appeal your parenting order, it will pay to attend legal counselling, as well as gather relevant documents to help your case (e.g. records of child support paid or parenting programs attended). You should also formulate some answers to whatever questions the court may ask during your appeal.
Need Some Additional Help?
If you’re facing a custody case, you’ll want some strong support in your corner. Duffy & Simon is a law firm with over 40 years’ experience in resolving legal issues and disputes. We are compassionate and caring lawyers who are well acquainted with family law issues such as child custody, divorce, family violence and financial agreements. We value transparency, honesty and authenticity in all proceedings. Additionally, we are skilled in translating legal processes into easy-to-understand terms. Contact us today to book your first consultation at Duffy & Simon.